For decades, the Speakers' Corner in Hyde Park, London, has been a favorite place for citizens to step up and share their voice on any given weekend. U.S. cities don't have a similar tradition, but the current use of the Internet to post comment and criticism is creating a new-technology variant.
While the dissemination of public comment or criticism of government conduct is commonly understood and accepted in many respects as part of cherished free speech, the publication of comment or criticism, particularly if negative and erroneous, is not necessarily a privilege of free speech. Negative and erroneous fact-based comment aimed at a person or business may constitute defamation, unfair competition or violation of consumer protection laws.
In the Internet era featuring collaborative communication in comment postings, is the person who posts the false comment solely liable for the falsity? Or, can the Internet site become liable as well for the publication of the false posting? The answer depends on the operation of the Web site.
Some Web sites merely serve as a passive publishing media for the public's online comments. Other Web sites, however, become active proponents of the public's online postings, by arranging the postings in some sort of hierarchy for or against a particular business or service provider.
Some Web sites actively analyze public comments and categorize or rank businesses or professionals based on the posted comments. Sites including Citysearch, Yelp, Angieslist, Ripoffreport and others actively invite public comment on businesses. Rippoffreport.com claims to be a site "by consumers, for consumers," adding, "don't let them get away with it, let the truth be known."
The postings on some of these sites are often public and may serve as a basis for a quality rating or ranking developed by the site. New consumers visiting these sites and looking for referrals may be influenced, positively or negatively, by the posted comments and the ratings.
What if the posted comments are false and the ratings thereby in error?
A targeted individual or business that believes the posted criticism — and resulting site-generated rating is false and unfair may have a claim against the person posting the false comment. But should the Web site also share in responsibility for the false comment?
Section 230 of the federal Communications Decency Act shelters from liability a provider of an "interactive computer service" that merely publishes information provided by others. As such, if the interactive computer service is merely a passive repository and publisher of information, then it may not be liable under the act if the public posting is harmful or defamatory.
On the other hand, if the interactive computer service itself posts the comment, the exemption from liability offered by the Communications Decency Act does not apply. There is no exemption under the act to the poster of a false or wrongful comment.
What about the circumstance where the Internet site induces the public to post comments in violation of the law? Or where the site takes an ownership interest in a posted comment by using the comment as a basis for ranking a private business or professional?
In these circumstances, the 9th U.S. Circuit Court of Appeals suggests that the act's exemption may not apply. In Fair Housing Council of San Fernando Valley v. Roommates.com LLC, the 9th Circuit held that the act does not apply to exempt liability when the Internet site actively induces subscribers to post roommate preferences in violation of the federal Fair Housing Act.
In this case, the proactive involvement of the Web site inducing the public posting of information in violation of the statute converts the Web site into a type of content provider — a poster — rather than a mere publisher.
In a similar manner, when a Web site takes public comment and provides a business ranking based on the comment, this proactive involvement may cause the loss of the exemption provided by the Communications Decency Act. The Web site may cross over the line from publishing the postings to adopting or standing behind the postings as its own. If the comments are factually in error, the Website's resulting ranking may be flawed. The loss of the exemption means the Web site may be liable for harm to a business injured by the false posting and ranking.
The Communications Decency Act does not provide immunity to the Internet site for public postings that violate federal criminal law or intellectual property laws. However, careful adherence to the act may shelter an Internet site from liability for the common sort of posted consumer comments. The Internet encourages free speech to a limit, but the act may not be available to exempt a site when public postings cross over the limit.
Michael M. Ratoza practices intellectual property law as an attorney with Bullivant Houser Bailey PC. He can be reached at michael.ratoza@bullivant.com.