Academic journal article The Review of Litigation

When the Customer Is Wrong: Defamation, Interactive Websites, and Immunity

Academic journal article The Review of Litigation

When the Customer Is Wrong: Defamation, Interactive Websites, and Immunity

Article excerpt

I. INTRODUCTION.........................................................................679

II. THE CDA AND THE INTERACTIVE INTERNET...........................682

III. ELEMENTS OF THE DEFAMATION CLAIM.................................686

IV. THE IMPORTANCE OF EARLY DISMISSAL................................687

V. STRATTON OAKMONT'S LONG LIFE IN § 230 OF THE CDA........689

A. The CDA as a Procedural Device...................................689

B. Textual Analysis of § 230................................................690

VI. PUSHING THE BOUNDARIES OF CDA IMMUNITY.....................692

A. Determining the Boundaries of § 230 Protection...........692

B. Good-Faith Manipulation of Consumer Reviews?..........694

C. A "Dirty World" for CDA Immunity...............................696

D. Specific Encouragement of What is Defamatory About User Content............................................................................698

VII. CONSTITUTIONAL PROTECTIONS FOR CONSUMERS' SPEECH ...701

A. Facts, Opinions, and Defamation Claims.......................701

B. The Private-Public Figure Distinction...........................704

VIII. DISCUSSION OF MATTERS OF COMMON INTEREST...................708

IX. CONCLUSION...........................................................................709

I. INTRODUCTION

"There are no saints online ... but the Internet will be cleaned up, yet," proclaimed Stephen Marche in his column for Esquire} Suggesting that the Internet has reached "peak hate," the novelist posited that a developing backlash against vicious and hateful online speech will lead us back to the rules of civility that have not changed in 2,000 years. A backlash may be imminent, but it hasn't arrived. Internet users are still inundated in hatred and dishonesty seemingly everywhere they look. Elaborate tales involving celebrities expose wild stories of online dishonest and mean-spirited schemes,* 2 but much less discussed are the effects of untruthful and uncivil speech in the influential medium of online consumer reviews of goods and services.3

A web of state and federal laws protect the free speech rights of consumer reviewers, allow businesses to recover for defamatory reviews, and grant immunity4 to website operators for the statements of their users. Overlaying state tort law, the Communications Decency Act (CDA)* * 5 protects interactive website operators from being subjected to publisher liability-thereby insulating them from responsibility for their users' statements. Whether this statute is too protective of website operators-perhaps immunizing those engaged in what most would recognize as content creation-is at the heart of debates over the CDA's suitability for the Internet of 2014 and beyond. It's also the subject of this Note.

Two 2012 district court cases presented the Sixth and Fourth Circuits with an opportunity to adopt a "specific encouragement" test.6 7 But the Sixth Circuit rejected this approach in favor of the Ninth Circuit's widely cited en banc decision from Roommates.com1 and the Fourth Circuit saw no appeal at the time of this writing. But the trial courts' specific encouragement approach, discussed below, survives as one possibility for denial of CDA immunity that would allow a defamed plaintiff to survive a website operator's motion for summary judgment.

In looking at the district court cases, this Note reviews other complications in cases involving consumer reviews. These include the limited protection provided by the First Amendment for opinion speech and the ill-suited constitutional doctrine governing the status of business owners as public figures that relies on an antiquated access to media analysis.8 Additionally, the common law privilege for discussion of matters of a common interest remains lost in the backdrop of online defamation litigation. It provides a potential pitfall for litigants, but its use in consumer review cases is no more than the creative pleading of an inapposite doctrine. …

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