2H 2022 Quick Links, Part 4 (Section 230, Consumer Reviews)

Section 230

* Ayala v. Viator, Inc., 2021 Mass. Super. LEXIS 1151 (Mass. Superior Ct. Nov. 19, 2021):

The claims in the Second Amended Complaint seek to hold Defendants liable for content created and published by Defendants, not a third party who then posted it on their website. Ms. Ayala specifically references Defendants’ statements that they “pre-screened local tour operators” and ‘”pre-vet them all’ to ensure an exceptional experience.” Moreover, her contract claims are based on Defendants’ description of the tour conducted by MAT. While Defendants argue that this description was created by MAT rather than by Defendants Viator or TripAdvisor, the Second Amended Complaint alleges to the contrary. Moreover, the tour description on Defendants’ website contains the word “Viator” in large bold letters at the top of the page, and makes no mention of MAT. Because Ms. Ayala has alleged that the posting was created by Viator, not MAT, I decline to dismiss the Second Amended Complaint on the basis of the CDA.

* Errato v. American Express Co., 2022 WL 17737285 (D. Conn. Dec. 16, 2022). Section 230 protects LinkedIn from claims over fake profiles.

* Stambul v. Miguel, 2019 Fla. Cir. LEXIS 14912 (Fla. Cir. Ct. Nov 14, 2019): “Defendant Contreras’ website, “The Digger”, serves as a platform for Defendant Perfetto to publish material involving the Venezuelan community. The website is not set up to permit third parties to independently post articles. Consequently, no one other than Defendants could be responsible for publishing its content, and therefore the Communications Decency Act does not provide immunity.”

* Fleites v. MindGeek S.A.R.L., 2022 WL 4456077 (C.D. Cal. July 29, 2022). Very broad ruling that Visa may be liable for CSAM violations based on providing payment services to MindGeek (Pornhub & more).

* Anupam Chander, Section 230 and the International Law of Facebook:

Section 230, I argue, made the U.S. a safe home base from which to offer a global speech platform. Section 230 immunizes platforms both for taking down material they disapprove of, and also for leaving up other material. Even if the platforms might be sued abroad, they could be confident that those suits could not follow them home…

[The Essay] shows that discussions of global issues are at stake when legislators propose to limit or substantially narrow Section 230 protections. A retreat from Section 230’s broad immunity will strengthen the hand of those around the world who seek to impose liability for either permitting speech or curbing speech; it will enable lawsuits in the U.S. arising out of discussions of global issues; and it will lead to heavy-handed content moderation of global issues to avoid any risk of being held liable….

in all of the cases that I have been able to discover involving foreign parties or events, with one exception, defendants successfully invoked Section 230, except in cases where the courts did not reach that issue because the defendant won on other grounds

* The EARN It Act was sold on the premise that Google & other services don’t take child sexual abuse material (CSAM) seriously enough. This NY Times story shows how (1) they take it VERY seriously, (2) false positives can be life-changing, & (3) more liability will create more false positives. This follow-up story indicates that Google had to relax its zero-tolerance approach to CSAM to correct obvious errors.

* Google LLC v Defteros [2022] HCA 27. The Australian High Court says that Google Search isn’t liable for search results that link to a defamatory article, even if it gets a takedown notice. It takes 97 pages & 5 opinions among 7 judges to reach this result. In the US, it’s an easy Section 230 dismissal.

* A.M. v. Salesforce.com, Inc., 2022 WL 2181068 (N.D. Tex. June 16, 2022). Dismissing Salesforce from a FOSTA lawsuit due to lack of personal jurisdiction.

Consumer Reviews

* Xu v. Google, Inc., 2022 WL 3586166 (N.D. Ill. Aug. 22, 2022):

– “the CFRA does not create any legal duty to remove false reviews.”

– “Xu also has not sufficiently alleged that Google’s internal policies imposed upon it a duty to remove the review. He claims that, because he is a “consumer” of Google’s services, Google owes to him a duty to follow its own review-moderation policies. But under Illinois law, a private company’s internal policies do not, standing alone, create legal duties.”

– “To the extent Xu asserts a claim based directly on Google’s purported violation of the CFRA, that claim also fails, because the CFRA has no private right of action.”

For more on understanding the Consumer Review Fairness Act (which the court misabbreviated to CFRA instead of CRFA), see this paper.

* Blossoms & Blooms, Inc. v. Doe, 2022 WL 3030788 (E.D. Pa. July 29, 2022): “Were every business owner who received a negative anonymous review online permitted to seek discovery into the reviewer’s identity, courts would be flooded with requests for early discovery, and the reviewer’s right to maintain their anonymity would be prejudiced. The requirement that plaintiffs make out a prima facie case supported by evidence is key, both in terms of preserving judicial economy and safeguarding First Amendment interests. The Court recognizes that Plaintiffs cannot prosecute this case unless they are able to ascertain the true identity of Jessica Walters. But Plaintiffs have not even shown that they have a case against Jessica Walters. Accordingly, the Court declines to upset Jessica Walter’s First Amendment right to speak anonymously online and denies Plaintiffs’ request to subpoena Facebook prior to a Rule 26(f) conference.”

* Wired: Inside the Underground Market for Fake Amazon Reviews

* Cetera v. Mileto, 2022 WL 3006778 (Mich. Ct. App. July 28, 2022). Bride defeats defamation lawsuit over online review of wedding photographer.

* Zeidenfeld v. Stetler, 2022 WL 4699840 (Cal. App. Ct. Oct. 3, 2022):

The alleged defamatory per se statements were made in the context of prominent participants in a popular, multibillion dollar industry. The speech occurred on a public forum where plaintiff boasts over 50,000 followers. A reasonable objective observer could conclude that the statements concern plaintiff’s integrity as an influencer, with a following of 50,000, in providing services and advice to those persons in the burgeoning fantasy sports world. That defendants’ tweets were a matter of concern to a substantial number of people is demonstrated by the tweets of numerous nonparties in response to the challenged statements, with some even requesting additional information. Because the speech was made to a large audience, was of concern to a substantial number of people, and involved the integrity of a person prominent in a multibillion dollar industry, we conclude that the challenged statements were in connection with an issue of public interest within the rubric of the anti-SLAPP statute …

We live increasingly in a world where the marketplace of ideas is on the internet, including social media sites. We are not aware of any California case that has held that merely because “insults” are the purported lingua franca of social media, any such “insults” are automatically immune from defamation scrutiny….

Defendants’ own tweets contain statements which, at this early stage of the proceedings, support an inference of recklessness to the truth of the statements. Defendants tweeted that they wanted to “rip into this dumbass @AlZeidenfeld,” that the “good ol’ boy’s in the DFS industry can eat dicks,” and that defendants “just dgaf.” The inference of recklessness to the truth is supported by defendants’ description of their tweets as “trash-talking.”