Amazon Can Freely End Book Reviewer’s Authoring Privileges–Haywood v. Amazon

Charles Haywood wrote book reviews at Amazon. He says “his style tends to be megalomaniacal and apocalyptic. He likes to fight.” (For more, see this story and his own self-analysis using Jordan Peterson’s personality test 🙄). No thank you. For what are likely good reasons, Amazon deleted his book reviews and removed his ability to write new ones in October 2019. Haywood initiated an arbitration over the termination, which ruled in Amazon’s favor.

Nevertheless, Amazon restored his authoring ability based on his promise to comply with its review policies. You can imagine how well that went. After a warning, Amazon again yanked his authoring privileges in February 2022 (the phrases that offended: “many Millennials are woketards” and “Wuhan plague”). Haywood sued Amazon, represented by two lawyers (Shane Balloun and Timothy Alan Duffy). The court dismisses the case.

[Jargon watch: this appears to be the first time the term “woketard” has appeared in either the Westlaw or Lexis caselaw databases.]

Breach of Contract. The complaint doesn’t point to any express provision Amazon allegedly breached. Plus, the contract reserved Amazon’s right to delete content and terminate accounts in its sole discretion. Haywood argued the contract was ambiguous about Amazon’s expectations, but the court doesn’t see it:

explanations surrounding the types of content a user “may” post impose no contractual duty on Amazon. Nor does such guidance about what users may post override Amazon’s right to remove content or revoke a user’s privileges

Implied Covenant of Good Faith and Fair Dealing. Haywood sought to impose new contractual duties on Amazon, which the implied covenants cannot do. In a footnote, the court adds that Amazon’s reservation of rights in its sole discretion may waive the implied covenant.

Washington CPA. Amazon didn’t deceive consumers because its contract reserved the rights it exercised:

the CPA claim is based on Amazon’s decisions to remove reviews and revoke review privileges. The Conditions and Guidelines expressly provide that Amazon may take these actions. Reasonable consumers, after reading the Conditions and Guidelines, would understand that Amazon reserves the right to remove reviews or terminate access to services in Amazon’s sole discretion….

As for the allegations that Amazon inconsistently applies its Conditions and Guidelines and uses unstated and undisclosed criteria to inform its decisions, Plaintiff does not allege any facts to state a plausible claim that Amazon’s practices are “likely to mislead” reasonable consumers

Section 230

Amazon additionally invoked Section 230 for the implied covenant and CPA claims.

• ICS Provider. Undisputed.
• Publisher/Speaker Claims. “As for the implied duty claim, Plaintiff alleges Amazon did not sufficiently explain its decisions to remove his reviews, thereby implicating Amazon’s role as a publisher. Similarly for the CPA claim, Plaintiff challenges Amazon’s alleged deceptive practice “of not informing reviewers why it bans them or takes down their reviews,” which also implicates Amazon’s status as a publisher in removing users’ content.”
• Third-Party Content. “Plaintiff, not Amazon, provided the information at issue.”

The court summarizes: “courts in the Ninth Circuit have consistently ruled that claims challenging the social media platform’s decisions regarding content moderation are immunized by section 230(c)(1).” Cites to Atkinson v. Meta, Sikhs for Justice v. Facebook, Lancaster v. Alphabet, FAN v. Facebook. See also this (uncited) article.

To get around this, Haywood argued that the court was blurring 230(c)(1)’s protection for leaving up content with 230(c)(2)(A)’s protection for removing content, citing Justice Thomas’ Malwarebytes statement. The court responds: “Justice Thomas’s concurrence does not constitute binding authority. And binding Ninth Circuit authority holds that section 230(c)(1) immunizes interactive computer service providers’ decisions to both publish content or remove content.” Cite to Barnes v. Yahoo.

Implications

This case reinforces that Section 230(c)(1) applies to the full range of content moderation decisions, whether that’s leave-up or remove, so long as the complained-about content comes from third parties (whether that’s the plaintiff or someone else).

Amazon didn’t invoke Section 230 for the breach of contract claim, but a number of cases (at least in California) would have applied 230 for that claim too because the lawsuit fundamentally sought to override Amazon’s editorial discretion. See, e.g., Murphy v Twitter.

This ruling also reinforces that consumers reviews are a paradigmatic use case for Section 230.

Although the explanations part didn’t get a lot of separate discussion, this ruling does support the intuition that services do not an independent duty to explain their content moderation decisions.

Finally, this ruling rejects the plaintiff’s various efforts to impose a nebulous “good faith” standard for content moderation decisions, which would in practice substitute the court’s judgment for the service’s editorial discretion.

Case citation: Haywood v. Amazon.com, Inc., 2023 WL 4585362 (W.D. Wash. July 18, 2023). The complaint.