Ripoff Report Rolls to Another Win–Intellect Art v. Milewski

By Eric Goldman

Intellect Art Multimedia v. Milewski, 117024/08 (NY Sup. Ct. Sept. 15, 2009). For more background on the lawsuit, check out the companion blog.

This case involves the “Swiss Finance Academy,” an expensive summer college program. A disgruntled student posted some criticisms about the program on Ripoff Report. See the post in question. The program brought a lawsuit against both the posting student and the Ripoff Report.

The plaintiff alleged defamation and a products liability claim against Ripoff Report. Both are dismissed per 47 USC 230. The court’s discussion regarding the products liability claim is particularly interesting. First, the court says the site is a service, not a product, and therefore may be categorically excluded from any products liability doctrine. Second, the court says:

“the court does not need to reach this novel issue, since plaintiff has not even alleged that the website was in a defective condition which gave rise to its claimed injuries. Rather it was [the student's] purported posting that gave rise to plaintiff’s injuries, not Xcentric’s website itself. The claim that Ripoff Report was defectively designed to elicit defamatory statements from its users is devoid of commonsense and reasoning, is unsupported by law, and is, therefore, reject.” [sic]

Oof. I’ve occasionally seen previous arguments that product liability doctrines get around 230. This case is one data point that they aren’t…and arguments to the contrary are “devoid of commonsense and reasoning.” Plaintiffs beware.

The plaintiff tried to add a few new claims against Ripoff Report and none of those get a chance mostly because of deficient allegations rather than 230. The tortious interference claims fail for lack of allegations about the specific affected relationships. The contract fails because the plaintiff isn’t a third party beneficiary of the Ripoff Report-student contract. The negligent misrepresentation claim failed for lack of a special relationship. The negligence claim failed for lack of an alleged duty. The negligent falsehood claim fails for lack of alleged special damages.

In the end, the Ripoff Report walks away from this lawsuit.

The student also gets a good ruling. The court rejects the defamation claim because it characterizes all of the student’s statements as protected opinion. [Note: the Ripoff Report posting was under a pseudonym, so it's not confirmed that the student is the same person as the poster.] It seemed to me that the court was cutting corners here. For example, the report said that the school only fed students toast for breakfast. That seemed like a pretty factual assertion to me; I’m not sure how to style that statement as an opinion. Even so, the court cut the corners for a good reason:

“the website, when viewed in its full context, reveals that Milewski is a disgruntled consumer and that his statements reflect his personal opinion based on his personal dealing with plaintiff. They are subjective expressions of consumer dissatisfaction with plaintiff and the statements are not actionable because they are Milewski’s personal opinion.”

Milewski isn’t totally off the hook, as there are still unresolved issues about unpaid tuition. But otherwise, this court shuts down another vendor’s attempt to squelch negative feedback about its business practices.

David Johnson has a more plaintiff-friendly take on this case.