Of Course Section 230 Applies to Amazon Reviews–McCall v. Zotos

June 16, 2023 · by · in Content Regulation, Derivative Liability

This case involves a customer’s Amazon review asserting that a merchant sold fake goods. The merchant sued Amazon (pro se) for defamation based on the review. The 11th Circuit easily dismisses the claim per Section 230.

ICS Provider. “Amazon’s website allows customers to view, purchase, and post reviews online, and therefore provides computer access by multiple users similar to an online message board or a website exchange system.”

[Jargon note: I have no idea what a “website exchange system” is. I searched for the phrase in Westlaw and found 12 opinions using the term. The first is the 2016 Second Circuit FTC v. LeadClick decision, which said: “Courts typically have held that internet service providers, website exchange systems, online message boards, and search engines fall within this definition.” That reference made no sense then and still makes no sense today. Despite that, the phrase has also appeared in opinions from the 4th and 9th Circuit (Henderson and Rigsby, respectively). This means that “website exchange systems” qualify for Section 230 protection in at least four federal appellate circuits.]

Third-Party Content. The merchant claimed that Amazon partially developed the review because “it set rules governing customer feedback.” This is the kind of argument only a pro se litigant would make in 2023. The court responds:

Roommates.com is not applicable, as the complaint here alleges that Ms. Zotos wrote the review in its entirety. Amazon did not create or develop the defamatory review even in part—unlike Roommates.com, which curated the allegedly discriminatory dropdown options and required the subscribers to choose one. There are no allegations that suggest Amazon helped develop the allegedly defamatory review.

Publisher/Speaker Claim. “The plaintiffs seek to hold Amazon liable for failing to take down Ms. Zotos’ review, which is exactly the kind of claim that is immunized by the CDA—one that treats Amazon as the publisher of that information.”

Note that Amazon prevailed despite the fact that the merchant allegedly notified Amazon of the alleged defamation and tendered evidence to Amazon that the review was false. Section 230 isn’t affected by takedown notices or defendant scienter.

I don’t have a comprehensive inventory of the times that Amazon has prevailed on Section 230 for user reviews. The first case that came to mind was Schneider v. Amazon.com, a Washington Court of Appeals case from 2001 (not cited in this opinion), which held that “The Communications Decency Act immunizes Amazon.com, Inc. from liability for allegedly defamatory comments posted by third parties on Amazon’s web site.” 22 years later, I guess we’re still litigating that conclusion.

Case citation: McCall v. Zotos, 2023 WL 3946827 (11th Cir. June 12, 2023)