Are Web Sites Liable for Libelous User Comments?
With reports of a possible potential class action against Avvo, a controversial new lawyer-rating site, now seems as good a time as any to discuss liability of a Web site owner for libelous material posted by commentors. Though the lawsuit against Avvo apparently relates to downgrading of lawyers by the Web site itself rather than commentors, because Avvo invites lawyer and client testimonials, it could also face lawsuits by attorneys upset about negative comments.
Denise Howell discusses some of the legal issues related to Avvo in her recent Lawgarithms column. Howell predicts that the lawsuits may run into trouble under Section 230 of the Communications Decency Act, commenting that:
the kind of ownership and control over one’s reputation data attorney Browne and others are threatening to enforce in court may find itself running up against Section 230 of the Communications Decency Act, which shields providers of interactive computer services from liability for simply filtering and/or distilling information provided by others. Though a California district court recently skirted the issue of whether Section 230 immunizes search engines for the reputational consequences of their ranking and placement algorithms, the situation is analogous. It’s interesting that unlike the search engine cases, these attorneys aren’t complaining about reputational slippage; they’re saying Avvo’s rating system has harmed them from the get-go. What’s not clear from the lawyers’ demand letter is the legal basis for the threatened lawsuit. Defamation I assume, but what’s defamatory? Individual components of the rating or the rating itself? Avvo says it merely synthesizes data from third party sources, including the subject lawyers if they choose to participate in the process (e.g., by claiming and editing “unlocked” portions of their profiles or reporting incorrect data). The key question for Section 230 purposes will be whether Avvo and other reputational ranking systems are embellishing or enhancing third party material (or creating new material) by virtue of the way it is collected, processed, and displayed. (See Professor Eric Goldman’s excellent post on the recent Ninth Circuit decision/”hairball” that is Fair Housing Counsel v. Roommates.com.)
Section 230 is receiving additional discussion these days in two other cases involving commentary at Web sites that adversely affected lawyers or, at least, a lawyer-to-be. The first of these cases involves a suit by two female law students against Anthony Ciollio, founder of Autoadmit, a bulletin board-type site, as well as commenters who badmouthed them in postings at the site. The women claim that as a result of false and slanderous comments, no law firms would hire them (we posted on this story here). In posts here and here, Eugene Volokh discusses the hurdles to the suit that Section 230 erects. Volokh opines that Section 230 generally immunizes Web site owners from these types of suits and also has questions about causation. Volokh argues that the women may have trouble proving that firms did not hire them because of comments at Autoadmit rather than reasons such as lack of merit, not a "fit" for the firm, etc.
Eric Goldman has a post on the Autoadmit case as well, also anticipating that Section 230 will serve as a bar. And, Goldman also anticipates that the case will also result in embarrassing relevations about the female plaintiffs, such as rehashing of the rude comments and discussion of other reasons that made them undesirable law firm associate candidates. (Incidentally, for those upset that Ciollio might not face liability for the site, as discussed by Brad Wendelhere at Legal Ethics Forum, Edwards Angell, Palmer & Dodge rescinded its job offer to Ciolli, and Wendel predicts that Ciolli might have trouble gaining admission to the bar with this incident on his record. In short, even without a suit, Ciolli has paid for his involvement.)
The second suit involves a site called DontDateHimGirl.com (see our earlier story here), where users post about their bad experiences with men they've dated. In this case, Section 230 likely would have played a role had the suit not been dismissed for jurisdictional issues. As discussed by the Electronic Freedom Foundation in this
Web site post,
EFF filed an amicus brief in support of Dontdatehimgirl in December, arguing that the site cannot be held liable for comments written by others under Section 230 of the Communications Decency Act. Section 230 specifically protects hosts of interactive computer services from liability, and is key to fostering free discourse online. Without Section 230, no one would risk creating a website where others could post opinions.
What's interesting about this trio of cases is that all of the suits brought or contemplated involve lawyers or lawyers to be. Are lawyers more sensitive than the general population or more seriously harmed by negative comments? Or are we simply more litigious?
Posted by Carolyn Elefant on June 13, 2007 at 06:01 PM | Permalink
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