The CDA – A Better Shield Than Sword

Section 230 of the federal Communications Decency Act is a tremendously effective shield.  Web site operators have used it for years now to fend off suits seeking to treat the operator like the publisher of third party content.  Xcentric Ventures – the company that operates the Ripoff Report have thrived under this law.  Disgruntled consumers can post on the site at will listing their grievances against any business.  And while Ripoff Report allows the subject business to post a rebuttal, it removes content only after an arbitration process that requires a $2000 filing fee.  Some people consider that approach a form of extortion.  

The CDA is a major part of the Ripoff Report business model.  So much so, that the Ripoff Report site contains this proclamation:

Thinking of suing Rip-off Report? 

If you are considering filing a lawsuit against Rip-off Report, click here for important information about applicable federal law. Do you really want to sue Rip-off Report? really need to read this link.

But for all its utility as a defensive mechanism, the CDA is not as useful as a sword as Ripoff Report recently discovered courtesy of a Ninth Circuit Court of Appeals decision.  Xcentric had prevailed in a case filed by a lawyer named Lisa Borodkin on behalf of her clients Raymond Mobrez and Iliana Llaneras. Borodkin’s clients claimed Xcentric extorted money from them in the course of its business. The trial court dismissed those claims at the inception of the case.  It found that Borodkin’s clients had no claim as a matter of law.  The CDA played a large role in the court’s decision.

Not satisfied with merely winning the case, Xcentric went in for the kill, alleging that Borodkin was liable to it for “malicious prosecution” – essentially bringing a case that had no legal or factual basis.  Xcentric argued that the CDA was so clear that Borodkin couldn’t have had any good faith basis in prosecuting the suit.   The appellate court affirmed a trial court’s finding that Xcentric failed to establish a malicious prosecution claim.  It noted that included in Borodkin’s complaint were allegations that Ripoff Reports own words may have led to the claim against it.  The CDA offers no protection for content supplied by the Web site operator itself.  And to the extent the complaint alleged Xcentric misrepresented the nature of its site. 

So Xcentric had to be content with merely winning the original lawsuit.  The CDA proved to be the Dennis Rodman of federal law – great on defense, not such an offensive threat.