Posted By: Julia Ketchum
Today, many sites, including Amazon, Yelp, Ebay, Redbox, and Internet Movie Database have user reviews rate anything and everything – products, services, etc. These reviews are often helpful. A bad review can save you from watching a horrible film or doing business with a horrible company. However, the business with the bad review will likely get upset and try to do something to silence the critic. Who is responsible for the bad review: the internet service provider or the user who wrote the review? In this post, we will talk about 47 U.S.C. § 230 of the Communications Decency Act and Kimzey v. Yelp. In conclusion, the OSP (online service provider) will not be considered responsible, but the user can be liable for defamation. Although the user might be liable, we will end with the many reasons a law suit is unlikely and how to avoid a law suit altogether.
47 U.S.C. § 230 – section (c) and section (f)
There are two important sections important to this analysis. 47 U.S.C. § 230(c) is about Protection for “Good Samaritan” blocking and screening of offensive material. It reads:
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Section 47 U.S.C. § 230(f) defines the relative terms:
As used in this section:
The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3) Information content provider
The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
Kimzey v. Yelp: interpreting 47 U.S.C. § 230
Kimzey v. Yelp held that the online service provider would not be held responsible. In Kimzey v. Yelp, a user wrote a review about her bad experience with a locksmith company. The locksmith company sued Yelp since it argued that Yelp might have copied the bad review from another site and therefore authored the review. The locksmith company also claimed that Yelp created negative reviews to extort the locksmith company to buy more advertising from Yelp. It also argued that Yelp authored the review by making slight changes to it through its use of the star ratings (the review had one out of five stars). The court dismissed these arguments. Following the definitions in 47 U.S.C. § 230(f), the court determined the Yelp user was an information content provider who authored the review. It also determined that Yelp was the interactive computer service. And under 47 U.S.C. § 230(f), an interactive computer service should not be treated as the speaker of any information provided by another information content provider. However, if Yelp had been the information content provider, then Yelp could have been liable for defamation. Because of this lawsuit and the statute, OSP are not liable unless they author the negative review.
The Possibility of Lawsuits Against Users
In response to this ruling, for a period, some users were slammed with lawsuits. Overall, it is not very common for a company to sue a customer for defamation. However, it does happen. A woman was sued after posting a negative review of her contractor. The contractor sued for $750,000 in defamation damages after she posted her review on Yelp and Angie’s List. Another news report discussed how a couple was sued for posting a negative review about a pet sitting company and a woman was sued after posting a negative review of her dentist. According to the news report, some companies have added non-disparagement agreements to their contracts with customers, citing that agreement term as breached when the customer later writes a negative review. Online service providers do provide guidelines for posting reviews like Amazon and Yelp’s policy. Amazon gives a vague idea of what not to do – unhelpfully, Amazon says not to post defamatory reviews without explaining what a defamatory review is. Yelp has a page outlining elements of an inappropriate review. Yelp also has a page about users potentially being sued for their reviews.
Response from Obama Administration
In December 2016, Obama signed H.R. 5111, the Consumer Review Fairness Act of 2016. This bill allows state governments and the Federal Communications Commission (FCC) to take legal action against businesses who threaten to sue customers who write negative reviews. The law also voids any non-disparagement term a contract includes. More likely than legal action, companies will likely remove the non-disparagement terms themselves to comply with the law. If the companies do not remove the terms, the companies have the burden of explaining why they are violating the Consumer Review Fairness Act.
Reasons Why Companies Will Not Usually Sue Users
Lawsuits against users are rare for many reasons. First, it is unpopular. Many of these stories about customers being sued make observers angry at the company. To most people, a company reacting negatively to reviews looks like an attack on free speech. This can turn into a PR nightmare. Forbes encourages businesses to respond to negative reviews calmly and with a positive tone. Second, most users are unlikely to pay huge damage amounts. The woman who was sued by her contractor does not seem to have ended up paying the contractor anything in defamation damage. This case, Dietz Development, LLC v. Perez, seems to have ended completely after a preliminary injunction was reversed in Perez’s favor. Third, there is the problem of not knowing who the reviewer is. If the reviewer is anonymous, the company can try to get the identity released through a discovery subpoena to the Online Service Provider but the OSP might not have much identifying information on the poster. Fourthly, companies might hesitate to act if your state has an effective anti-SLAPP statute. Anti-SLAPP statutes target litigation that is viewed as chilling free speech. SLAPP stands for Strategic Lawsuit Against Public Participation and most states have an anti-SLAPP law in some form.
Take-aways on Online Reviews
Although the Consumer Review Fairness Act has extended protection for consumers, it is best for reviewers to follow some basic tips on online posting to protect themselves from a lawsuit. First, stick to the facts. Lots of times, reviews with profanity or huge exaggerations are the reviews that rise to the level of defamation. If you are reviewing a restaurant saying you almost died since they served you something you are allergic to after you warned them of your allergy, you better have the facts on your side. It also is not advisable to throw around emotionally charged words or claim malpractice in a review against a doctor or lawyer. Second, read your contract. The Consumer Review Fairness Act of 2016 makes non-disparagement agreements illegal but if you read the contract and see it there, that is a pretty clear indicator the company is combative about its reviews and the greatest victory is the battle not fought. It might be better to just walk away before doing business with them. It is also important to remember that defamation suits are governed by state law. Each state has different criteria and different defenses. The criteria and defenses in Arizona are outlined here. With these tips in mind, writing reviews online hopefully should keep you out of legal trouble.