Even The CDA Has Limits Apparently

The Communications Decency Act is either the best or worst piece of legislation ever passed by the United States Congress, depending on your point of view. Web site operators, who received broad immunity for the content of third party postings, would no doubt count themselves as part of the “best” voting bloc. People who have been the subject of third party postings, and whose only remedy is an action against the anonymous and penniless poster, presumably count themselves among the “worst” group.   

On balance, courts have applied the CDA broadly, and in most cases have let Web site operators off the hook in cases based on third party posts. But not always. And a recent decision from a federal district court in Massachusetts is one of those occasions where a court pulled on the CDA leash. 

The case arose from the apparently fiercely competitive world of movers. The plaintiffs were a collection of moving companies who alleged that a competitor — Xpress Movers – set up a Web site that provided reviews of local moving companies.  According to the complaint, Xpress had an interesting editing style.  It deleted positive reviews about the plaintiffs, along with negative reviews concerning Xpress.  

In reaction to the lawsuit, Xpress argued that the CDA compelled the court to dismiss the complaint. Xpress argued that the gist of the complaint centered on third party content – the reviews that Xpress actually allowed to remain on the site. And even though Xpress selectively cut certain reviews, that didn’t make Xpress the content creator.   

But the court didn’t see it that way. It determined that the complaint was not based on information provided by another content provider. Rather, in the court’s view, the claim centered on Xpress’s “Ill-intentioned deletion[s]” coupled with representations on the Web site that the site offered “accurate” data and is “serious about reviews quality.”  According to the court, that combination made the site a developer of the alleged misinformation. 

The court also ruled that the portion of the CDA that provides immunity to the site operator for action “voluntarily taken in good faith to restrict access to… material” didn’t apply because Xpress didn’t edit in good faith. 

I’m not sure where this holding will lead. The theory of the CDA is that if a third party posts actionable content the site host isn’t responsible.  Here, none of the specific content is actionable. That is, there doesn’t appear to be any allegation that any one posts defamed the plaintiffs. Instead, the theory seems to be, that Xpress edited the site in a way that created an inaccurate impression overall. And in doing so, Xpress didn’t live up to its promise to maintain an “accurate” review site. 

But does the site’s promise about “accuracy” create a duty to the plaintiffs? Typically such promises don’t. I can’t sue a TV station because I got caught in an unforecasted thunder storm, even if the station says it has the most accurate weather forecast. And what if Xpress took down the positive competitor reviews because it suspected those reviews weren’t on the up and up? This decision was in response to a motion to dismiss – so the case is in its infancy. But even though these aren’t the most sympathetic defendants, I’m not sure the court got this one right.