2H 2017 & Q1 2018 Quick Links, Part 3: Section 230, Consumer Reviews

Section 230

* Backpage.com, LLC, V. Hawley, 2017 WL 5726868 (E.D. Mo  Nov. 28, 2017):

Backpage cites Doe No. 1 for the proposition that, as an interactive computer service provider, its “choices about what content can appear on the website and in what form, are editorial choices that fall within the purview of traditional publisher functions,” and are therefore shielded by the CDA. Id. at 21. In Doe No. 1, the plaintiffs, minor victims of sex trafficking, alleged that Backpage “tailored its posting requirements to make sex trafficking easier” and implemented “rules and processes governing the content of advertisements . . . designed to encourage sex trafficking.” Id. at 16. The First Circuit held that the CDA immunized Backpage from liability under the state’s anti-sex-trafficking law because: “[C]laims that a website facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by section 230(c)(1).” Id. at 22. See also M.A. v. Village Voice Media Holdings, LLC, 809 F.Supp.2d 1041, 1048 (E.D. Mo. 2011) (Backpage was immune from liability for crimes against minor because “there is no allegation that Backpage was responsible for the development of any portion of the content of [the] posted ads or specifically encouraged the development of the offensive nature of that content.”) (emphasis original).

Doe No. 1 is distinguishable because the plaintiffs’ claims focused on Backpage’s posting standards. In the state-court action here, AG Hawley alleges that Backpage’s activities exceeded that of a mere publisher of third-party content. For example, AG Hawley claims that Backpage “solicited the posting of illegal advertisements on its website” and “its own employees actively participated in the creation of those advertisements.” See, e.g., Roommates.com, 521 F.3d at 1166-67 (CDA did not apply where interactive computer service provider was responsible, at least in part, for development of subscribers’ profiles displaying discriminatory preferences). Additionally, AG Hawley states that Backpage “implemented a sophisticated system by which it identified posts likely involving illegal commercial sex, revised the content of those identified posts to limit law-enforcement attention, and then posted them to Backpage’s website.” See, e.g., Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008) (Section 230 permits liability for internet service providers that “induce” advertisers to post illegal advertisements or intentionally design their systems to facilitate illegal acts).

Determining whether the CDA preempts AG Hawley’s state-law MMPA claims would require the Court to: (1) consider disputed facts relating to Backpage’s role in revising and posting advertisements and (2) analyze whether those activities constitute “creation or development” under the CDA. Because this issue requires further factual inquiry and detailed legal analysis, Backpage’s preemption argument is not “facially conclusive,” and does not defeat Younger abstention.

* Weerahandi v. Shelesh, 2017 WL 4330365 (D.N.J. Sept. 29, 2017): “The Court finds the CDA bars Plaintiff’s claims against Google and YouTube. Both Google and YouTube are “interactive computer service[s].” Parker v. Google, Inc., 422 F. Supp. 2d 492, 551 (E.D. Pa. 2006), aff’d, 242 F. App’x 833 (3d Cir. 2007). Plaintiff does not allege Google or YouTube played any role in producing the allegedly defamatory content. Instead, Plaintiff alleges both websites failed to remove the defamatory content, despite his repeated requests. Plaintiff does not cite any authority in his opposition to Google and YouTube’s motion, and instead argues the CDA does not bar claims for the “failure to remove the videos” or to “take corrective action.” To the contrary, the CDA expressly protects internet companies from such liability. Pursuant to the CDA, Plaintiff cannot assert a claim against Google or YouTube for “decisions ‘relating to the monitoring, screening, and deletion of content from its network.’””

* Roberts v. eBay, Inc., 2017 WL 3311239 (D. S.C. July 14, 2017): “The case at bar does not relate to content posted on eBay. The Plaintiff’s allegations are that eBay did not assist him in his dispute with Visa, Paypal, and Mr. Tisland. The CDA does not appear to be applicable to the case at bar.”

* Interesting survey result on Internet exceptionalism: “Should the federal government regulate large social media platforms (eg Facebook/Twitter) that display, but don’t produce, content in the way the government regulates media companies?” Yes: 34%. No: 62%

Consumer Reviews

* Dayani v. Rohs, CV017894-15/NY (NY City Civil Ct. June 15, 2017). Endodontist asking patient to review him on Yelp waives defamation claim because he consented to the review.

* Chief Aircraft v. Grill, 288 Or. App. 729 (Nov. 8, 2017): “a reasonable factfinder could conclude that the two statements at issue in defendant’s Ripoff Report posting—that “Chiefaircraft.com Has so many chargebacks on their merchant accounts credit card companies will flag deland, Florida” and “because chiefaircraft.com has so many customer service issues and charge backs they flag it”—imply an assertion of objective fact. Accordingly, those statements, if false, are not protected by the First Amendment”

* Yelp Inc. v. Superior Court ex rel Montanga, 2017 WL 5247734 (Cal. Ct. App. Nov. 13, 2017): “we conclude that like the ISPs in AOL and Verizon, Yelp also has a significant stake in “vigorously protecting its [reviewers’] First Amendment rights, because a failure to do so could affect [its] ability to maintain and broaden its client base….a website host such as Yelp has standing to assert the First Amendment rights of persons who post reviews anonymously on its site, as against an effort to compel Yelp to identify those persons.””

* STAT: “Some solicit, others sue: Doctors take various tacks to respond to online reviews”:

Dr. Jeffrey Segal said there are more effective ways to respond. Instead of fighting negative comments, he said, providers ought to solicit more of them.

“I call it the denominator problem,” said Segal, chief executive of eMerit, which helps doctors collect and post reviews from patients. He said doctors who feel their reputation is being harmed by a few negative comments can combat the problem by opening the floodgates to all commenters….

Segal, who also founded Medical Justice, a firm that helps doctors deter frivolous malpractice suits, is among many doctors who have done an about-face on the value of patient comments. He said he initially thought they offered limited value in improving quality, while giving disgruntled patients a chance to take potshots.

Then he started to look into it more deeply. Examining data from insurance carriers on specific procedures, he found a high correlation between the outcomes data and what patients were saying about the doctors online. “I went from being opposed to it, to figuring out how to do it better,” Segal said of online reviews.

No one knows more about “denominator problem” in healthcare reviews than Dr. Segal given his substantial contribution to that problem. Related article.

* Wendy Davis: Judge Tosses Suit Over Vacation Rental Review. Prior blog post.

* Search Engine Land: 3 inconsistencies in Yelp’s review solicitation crackdown

* NY Times: Attacked by Rotten Tomatoes

* New Yorker: Improving Workplace Culture, One Review at a Time

* Quigley v Yelp: A rare case interpreting the Consumer Review Fairness Act & California’s law banning anti-review clauses. (The claims were nonsensical). Background.

* Reliable Carriers v. Moving Sites, Inc., 2:17-cv-10971-SFC-DRG (E.D. Mich. Feb. 21, 2018): Court allows contributory trademark infringement & dilution (!) claims to proceed against consumer review website based on allegations that the names of businesses being reviewed were infringing

* Fast Company: The War To Sell You A Mattress Is An Internet Nightmare: Why did Casper sue a mattress blogger? A closer look reveals a secret, multimillion-dollar battle to get you into bed.

* Boston Globe: TripAdvisor wants tougher law protecting online reviewers from suits

* Washington Post: They trashed their wedding photographer over a $125 fee, so a jury told them to pay her $1 million. Dallas News coverage.