Consumer Review Site Likely Shielded by CDA But Must Litigate Beyond Motion to Dismiss

On May 24, 2011, the U.S. District Court for the Western District of Pennsylvania cautiously ruled that a business that operates a website on which persons can post reviews about moving services companies is likely shielded from a defamation lawsuit under Section 230 of the Communications Decency Act (“CDA”), but must defend the case at least to a motion for summary judgment. 

In so holding, the court held that the website operator does not appear to be an “information content provider,” at least as the phrase is interpreted in Carafano v. Inc., 207 F. Supp.2d 1055 (C.D. Cal. 2002) (the CDA would not shield a service that created and tailored questionnaires that served as the basis for a user’s online profile) and Fair Housing Council of San Fernando Valley v. LLC, 521 F.3d 1157 (9th Cir. 2008) (dissected the contents of an allegedly discriminatory housing ad on a roommate-matching website, concluded that content posted in free-form boxes was shielded by the CDA, but discriminatory content created based on users’ answers to the site operator’s questions, chosen from the site operator’s predetermined list of responses, fell outside the scope of CDA immunity).

Those courts concluded that interactive computer services must play a role in the development of allegedly actionable content in order to lose the broad immunity the CDA provides against claims involving content posted on their pages by third parties.

The website at issue in this case, as alleged in the complaint, appeared to fall squarely within the CDA’s protections.  Nevertheless, out of an abundance of caution, the court provided the plaintiff with an opportunity to develop the record.  It ordered the defendant to file a prompt motion for summary judgment after the exchange of disclosures and limited discovery.

The CDA, at 47 U.S.C. §230(c)(1), states that “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.”  The immunity is limited to providers or users of interactive computer services, and the claims must treat the services as having acted as the publisher or speaker of information provided by someone else.  This plaintiff contended that the host was liable for defamation based on its assistance to a user in posting a negative review of its service, and its refusal to remove the review from the website.

This case appeared to fall within the CDA’s protections, the court held.  The court distinguished this case from the pre-formed questions and answers in “[U]nlike the present case (where the defamation claims were based upon the statements of the defendant), plaintiff’s claims for alleged violations of housing discrimination laws were based upon the elicitations made by defendant’s website in formulating the questionnaires and were impermissible questions related to race, sex or sexual preferences.”  Under those rulings, it seemed likely that this site operator acted as a CDA §230-protected interactive computer service. “The factual allegations in the Complaint aver no mechanism by which shaped the service reviews in question, such that it became an ‘information content provider,’ and the Court would tend to agree with the defendant that plaintiff has failed to ‘nudge’ its claims ‘across the line from conceivable to plausible.”

So, while the website operator seemed to fall squarely within the CDA’s protections under rulings like Carafano v. Metrosplash and Fair Housing Council v., in an abundance of caution, the court provided the plaintiff a second chance to demonstrate that the website operator contributed to content posted on its website in a manner that could destroy its immunity under Section 230 of the Communications Decency Act.

Richard B. Newman is an Internet Attorney and
Internet Defamation Lawyer at Hinch Newman LLP

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