Litigation Over Negative Online Reviews

We often get calls from clients who are concerned about reviews of their business online. Unfortunately, the relatively anonymous nature of the internet encourages many people to post things that they might not otherwise say or write. Sometimes, these postings cross the line between consumer opinion and defamation and our office is contacted to discuss potential litigation. 

Despite what many people think, comments online are not completely anonymous. Even if a site allows comments without registering or providing any identifying information, it is still possible to obtain the internet protocol address of the computer used to make the post, which often leads to the identity of the poster (or the identity of someone who is connected with the poster). Most service and internet providers, however, are reluctant to disclose this information without intervention from the courts, which forces the question, "Is it worth the effort to unmask an anonymous poster?" Even if the comments are defamatory, the cost of litigation can be high, with a relatively small chance of being able to collect damages from the poster. To offset the cost of pursuing legal action, some clients have asked whether the website hosting these comments will share in the liability of the defamatory poster.

Under Section 230 of the CDA, providers of an interactive computer service are immune from liability as the publisher or speaker of any information provided through their computer service unless they can be classified as an "information content provider." As defined under the statute, an "information content provider" is "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." Sites like Yelp and RipOffReport would only be liable for posts made through their site if it could be established that they were also an information content provider, and responsible in some way for the creation of the content posted to their websites.

Some plaintiffs have argued that these sites participate in the generation of content by soliciting complaints and steering those complaints into specific categories designed to attract attention by consumer class action lawyers. The legal support for liability for such actions comes from the Ninth Circuit case of Fair Housing Counsel v., LLC, 521 F.3d 1157 (9th Cir. 2008), where was held to be an information content provider by requiring users to disclose their sex, family status, and sexual orientation to use its website. This information was then used to match users looking for roommates and generate content with discriminatory listings. While review sites are capable of hosting discriminatory and defamatory content, their users are not required to disclose such information. All websites that allow user content are capable of hosting unlawful material, however, nothing in the Yelp or RipOffReport registration or posting processes require a user to disclose inappropriate material.

If review sites cannot be held liable for the passive components of their site, then liability must stem from a showing that they actively participate in the creation of content. The "material contribution" test articulated by the Ninth Circuit in the case of Fair Housing Council of San Fernando Valley v., LLC (2008) 521 F.3d 1157 states that a defendant's own acts must materially contribute to the illegality of a message for immunity to be lost. Most review sites merely host the content provided by users, therefore they are immune from liability for defamation under Section 230 of the Communications Decency Act.

In addition to seeking legal advice when negative comments about your business show up online, you may want to consider the counsel of a search-engine specialist. In general, resisting the temptation to respond to derogatory comments may be in your best interest, as any responses to a post have the potential to increase the search visibility of the remarks. Retaining the services of an online marketing firm may provide you with additional tools to deal with unwanted or false reviews, including techniques to decrease the page rank of such material while simultaneously increasing the rank of your own content.