TripAdvisor Doesn’t Get Early Section 230 Dismissal–Putt v. TripAdvisor

Putt booked a tour through TripAdvisor’s subsidiary, Viator. On the tour, she suffered personal injuries. Putt sued TripAdvisor for negligence, misrepresentation, and more.

Section 230. TripAdvisor invoked Section 230. The court says it’s too early to tell if TripAdvisor qualifies for the tour listing content provided by the tour vendor. The court says “Plaintiffs do not allege the extent of Defendants’ contributions to the content on Viator’s website” but that’s OK because Section 230 is an affirmative defense, plus the plaintiffs did allege that “Defendants’ own misrepresentations and omissions induced Plaintiffs to book their tour.”

Superficially, the court is right: Section 230(c)(1) doesn’t apply to TripAdvisor’s own misrepresentations or its changes to its vendor’s content that newly added tortious impact. But the court sure doesn’t seem to be scrutinizing the complaint’s text to find any evidence beyond threadbare pleading. That kind of laissez-faire approach to motions to dismiss does a major disservice to Section 230’s policy of screening out complaints based on third-party content.

Contract Formation. TripAdvisor invoked various liability limits in its TOS. The court says it can’t tell if the contract was properly formed because TripAdvisor’s filings included an undated screenshot, and the “Parties also appear to disagree
markedly on the Agreement’s presentation on the website—Plaintiffs’ description of its placement is irreconcilable with the screenshot.” Your periodic reminder that you need to maintain your TOS in a chain of evidence so persuasive that it convinces a judge to grant a motion to dismiss.

Case citation: Putt v. TripAdvisor, Inc., 2021 WL 242470 (E.D. Pa. Jan. 25, 2021)