Maybe The CDA “Blanket” Isn’t As Big As We Thought

I’ve written a lot on this site about Section 230 of the federal Communications Decency Act and the broad protection it provides Web sites and other interactive computer services. The key provisions are that the Web site host cannot be deemed the publisher of content supplied by a third party, and the host is not liable for filtering content. That is, the host can decide to remove or retain third party content as it sees fit, and not be liable for that decision. It’s pretty close to “blanket” immunity, but not quite. In a recent case in a California federal court, YELP! discovered that there are indeed limits to the size of that blanket. YELP! is a Web site that allows consumers to post reviews of local businesses. Those reviews are tabulated, and that results in an overall rating. YELP! also sells advertising on the site, and, according to the complaint, that’s where the trouble starts. The plaintiffs contend that YELP! threatens advertisers and potential advertisers that, if they don’t advertise, or fail to advertise at certain levels, YELP! will manipulate the posted reviews. That includes leaving negative reviews up, taking down positive reviews and even having YELP! employees create negative reviews. YELP denies the allegations, but it also filed a motion to dismiss claiming that, even if the allegations were true, the CDA protected it. Its theory was that any damage to the plaintiffs from negative reviews resulted from third party content, for which YELP could not be deemed to have “published.” It also contended that, to the extent the damage resulted from its decision to remove positive posts, it was covered by the protection for filtering. The court gave that argument mixed reviews (get it?). It agreed that the CDA shielded YELP! from any damages flowing from third party generated negative reviews. But it also noted that negative reviews created by YELP! staff wouldn’t qualify for that protection, because those reviews weren’t really third party generated content. And to the extent YELP! was able to “extort” (that is the term the plaintiffs use) money by threatening to remove positive reviews, the court found no protection from the CDA filter provisions. That section applies only to hosts who filter content in “good faith.” And anytime the term “extortion” gets mentioned, it pretty much rules out “good faith.” The good news for YELP!, at least temporarily, is that the court found the complaint’s allegations too vague, and for that reason, dismissed the case. The bad news for YELP! is that the court allowed the plaintiffs to amend the complaint (for the third time). So it’s safe to say that YELP! might need HELP!