Angie’s List’s Telephone and Fax Information Services May Be Immunized by Section 230–Courtney v. Vereb

By Eric Goldman

Courtney v. Vereb, 2012 WL 2405313 (E.D. La. June 25, 2012)

Courtney and Vereb are both psychiatric professionals. Vereb posted allegedly defamatory comments about Courtney to Angie’s List in 2009. Courtney says he discovered the comments in December 2011 and contacted Angie’s List, who told him that he should reply in the comments. In February 2012, Angie’s List changed course and removed the comments for violating its policy that competitors can’t opine about each other. Courtney then sued Vereb and Angie’s List.

The court easily grants Angie’s List’s motion to dismiss based on Section 230. Although it’s not a surprise, I believe this is the first time Angie’s List has qualified for Section 230 immunity. (Admittedly, I don’t fully understand what happened in Sieber v. Brownstone Publishing).

To get around Section 230, the plaintiff tried two arguments. First, he argued that Angie’s List also distributed consumer reviews via phone and fax. The court rejects the argument:

This argument is creative, but unsupported by the case law; Plaintiff did not provide, and the Court has been unable to locate, cases in which a website which offers users the option of receiving hard copies of online information via telephone or fax was deemed to be “not merely just an ‘interactive computer service.’ “…The Court finds that excluding websites which offer this type of additional service from the protection of the CDA would be contrary to the policy behind the statute, which was “to promote the continued development of the internet” by allowing it to expand “unfettered by federal or state regulation.”

Wait, a memory game about Section 230 precedent? CHALLENGE ACCEPTED!

I also couldn’t find any Section 230 cases regarding the distribution of content via fax or telephone (I’m not sure how the latter is done–by doing text-to-speech or by having an employee read the review?). However, I can point to at least two cases where a court said Section 230’s immunity didn’t apply to hard-copy publication of third party content that was received in electronic format (Parisi v. Sinclair dicta in n.3 and Curran v. Amazon). The court didn’t cite to either.

Even though the court didn’t explore this issue in any depth, I believe 47 USC 230 applies to telephone-based information services (e.g., 900 numbers) and possibly even content publishers that distribute via fax. The statutory language doesn’t limit itself to websites; it covers “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” The automated telephone or fax servers should satisfy the “computer server” requirement. With the growth in computer-like client devices, such as smartphones, does an automated fax or telephone service (especially text-to-speech) mean that those devices are engaged in “computer access”? It might.

The ruling on Section 230’s applicability to fax and telephone information services is indeed novel and perhaps unpredecented. However, I doubt this case is the definitive final word on that topic.

Courtney’s second anti-Section 230 argument is that Angie’s List “requests that individuals, as part of their report generation process, provide additional content about the professional against whom they are report,” which turns Angie’s List into a first-party developer of the content. I didn’t understand this allegation, but it seems to be a type attack on the immunity. Perhaps it means Angie’s List tries to get users to provide structured objective data to complement their unstructured consumer review. The court rejects the argument:

Plaintiff fails to provide, and the Court has been unable to locate, binding case law establishing that a website’s use of a questionnaire renders it a “content provider” of information provided in response to same.

Obviously the court cut some corners by saying it couldn’t find *binding* caselaw about Section 230 and questionnaires. I believe that’s a true statement given the paucity of Fifth Circuit Section 230 cases (I believe Doe v. MySpace is the only one?), but the court could have gotten into Carafano, and many related cases if it wanted to. The fact the court sidestepped that obvious issue by invoking the requirement of binding precedent tells us the judge just wanted this case off his docket.

I’ve mentioned before that doctors seem unusually litigious about consumer reviews, and this case provides more support for that proposition. For more on that topic, see my post Doctors’ Online Reputation Management and Patient Reviews (Talk Notes from ASAPS Annual Meeting).