Ripoff Report May Be “Appalling,” But It Still Gets 47 USC 230 Immunity–Giordano v. Romeo
By Eric Goldman
Giordano v. Romeo, 2011 WL 6782933 (Fla. App. Ct. Dec. 28, 2011). [Disclosure note: I joined an amicus brief in support of Ripoff Report's position, written by Paul Levy of Public Citizen]
One sign of a good judge–a judge who can set aside his/her personal feelings to uphold the law when it conflicts. We got one of those rulings in this case. The judge condemns Ripoff Report using some of the harshest language I’ve seen in a judicial opinion in a while:
The business practices of Xcentric, as presented by the evidence before this Court, are appalling. Xcentric appears to pride itself on having created a forum for defamation. No checks are in place to ensure that only reliable information is publicized. Xcentric retains no general counsel to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct. Even when, as here, a user regrets what she has posted and takes every effort to retract it, Xcentric refuses to allow it. Moreover, Xcentric insists in its brief that its policy is never to remove a post. It will not entertain any scenario in which, despite the clear damage that a defamatory or illegal post would continue to cause so long as it remains on the website, Xcentric would remove an offending post. [footnote omitted]
I needed asbestos glasses just to read that.
[As a factual note, Ripoff Report has hedged its "we never remove posts" stance, and it does offer its Corporate Advocacy Program which the court acknowledges in a footnote and a separate arbitration system that the court doesn't note.]
Despite the stinging rebuke of Ripoff Report’s basic enterprise, the judge concludes: “However much as this Court may disapprove of business practices like those embraced by Xcentric, the law on this issue is clear. Xcentric enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.”
Some quick background. In the wake of the Seventh Circuit’s Blockowicz ruling, which said that Ripoff Report couldn’t be forced to remove a third party post under FRCP 65, a Florida state court judge went off the rails in a similar case. That judge held that 47 USC 230 did not prevent the judge from ordering Ripoff Report to remove the user post. This was a rogue ruling by a judge who clearly wasn’t interested in what the law actually said. In an interesting turn, that judge wasn’t reelected (the voters apparently got it right on that one!) and the case transferred to a new trial judge, who promptly reversed the ruling and upheld Ripoff Report’s 230 immunity.
On appeal, the intermediate appellate court upheld the second trial judge’s ruling in a short (and, as you can see, sharp) ruling. In 2001, the Florida Supreme Court, in Doe v. AOL, adopted a broad reading of 230 as Florida law, and this court sees that ruling as dispositive: “Consequently, under Florida law, section 230 of the CDA ‘creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.'”
I continue to be skeptical of Ripoff Report’s business model (I’ll explain more in my forthcoming post on Ascentive v. PissedConsumer), and I continue to have reservations that inaccurate information can remain on the Internet even if judges say it’s inaccurate. However, I am even more troubled by judges who simply choose to ignore 47 USC 230, so I’m glad to see the appellate court got to the right result.
UPDATE: Paul Levy comments on the ruling.