e-Commerce Meets American Idol

Certainly, there are few barriers to posting comments, whether by a competitor, a disgruntled employee or a former customer. Online, it can often be done anonymously (and, as noted below, some ratings sites go out of their way to promote that anonymity). Since the earliest days of online content: 'On the Internet, nobody knows you're a dog' has been the shorthand way of expressing not only the need for caution when receiving messages from an unknown sender, but also worries of a buyer or seller, individual or retail, over whether the other party and the advertised item ' or an entire inventory ' really exists. Some sites now even use people's desire to vent about businesses ' and the human curiosity that draws us to read these ventings of emotion and other statements ' as part of their business model. Many major retailers, such as Amazon.com and Circuit City, allow customers to review products. Similarly, Angie's List (www.angieslist.com/lp/angieslist1.html) offers reviews of businesses 'straight from the mouths of members who've hired them' for those willing to pay a membership fee. Rip Off Report (www.ripoffreport.com) allows 'consumers' to 'file and document complaints about companies or individuals.' Similar sites include www.consumerreview.com, www.urbanreferrals.com, www.rustreviews.com and www.yellowpages.com, or comparable sites of many local publications looking for new revenue sources. In the world of travel, Trip Advisor (www.tripadvisor.com) boasts of '10 million+ honest travel reviews and opinions from real travelers around the world.' Regardless of the type of good or service, it seems that someone, somewhere, has felt compelled to share ratings about it.

A Web Site Is Not a Newsroom

Although anyone can post a review online, rarely are the reviews vetted for the knowledge or independence necessary to provide a worthwhile review, other than comments by others reading and the posting of these comments and reviews online ' the reader must consider the source and evaluate its merits. The Wikipedia model of collaborative scholarship has simply been applied to shopping. Some sites, though, try to provide a rough measure of objectivity by rating the raters, such as Amazon.com's ranking of reviewers (see, www.amazon.com/review/top-reviewer-faq.html), or eBay's 'Feedback Profile,' at http://pages.ebay.com/services/forum/feedback.html. Indeed, sites that provide ratings contain the typical legal language disclaiming any responsibility for the contents, as is described immediately below:

TripAdvisor takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is TripAdvisor liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, TripAdvisor is not liable for any statements, representations or Content provided by its users in any public forum, personal home page or other Interactive Area (from, www.tripadvisor.com/pages/terms.html).

Amazon.com has similar limitations. For instance: 'Amazon reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content. ' Amazon takes no responsibility and assumes no liability for any content posted by you or any third party' (see, for instance, www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=508088).

The Rip Off Report 'encourage(s) and even require(s) authors to only file truthful reports,' but 'does not guarantee that all reports are authenic [sic] or accurate. Be an educated consumer. Read what you can and make your decision based on an examination of all available information.'

Perhaps the philosophy of online rating and reviewing was best expressed by eBay founder Pierre Omidyar, in February 1996, shortly after eBay was founded:

Now, we have an open forum. Use it. Make your complaints in the open. Better yet, give your praise in the open. Let everyone know what a joy it was to deal with someone. Above all, conduct yourself in a professional manner. Deal with others the way you would have them deal with you. Remember that you are usually dealing with individuals, just like yourself. Subject to making mistakes. Well-meaning, but wrong on occasion. That's just human. We can live with that. We can deal with that. We can still make deals with that. Thanks for participating. Good luck, and good business!Regards, Pierre Omidyar (see, http://pages.ebay.com/services/forum/feedback-foundersnote.html).

As a result, firms whose reputation rides on the reviewers ' especially e-commerce firms, whose presence and customers exist only online ' have little control over their online reputation, when others don't follow Omidyar's modern restatement of the Biblical 'Golden Rule.' Even worse, postings can last online indefinitely, and the cost in time and aggravation to find them, much less police them, can be immense. As one colleague pointed out, if you were called a name on the playground, you may have had a fight and received or given a black eye, but the dispute was soon over. Online, in contrast, criticism of your business can last forever, and spread almost instantly. (In fact, one academic, Daniel J. Solove, has examined the social implications of such postings in The Future of Reputation: Gossip, Rumor and Privacy on the Internet, (see, www.amazon.com/Future-Reputation-Gossip-Privacy-Internet/dp/0300124988/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1207311063&sr=8-1). Solove cites as an example how a local, forgettable event ' a dog relieving itself on a Korean subway ' became an international phenomenon when filmed and posted for the world to see.

Back to Business

In this article, however, I am focusing solely on business criticism, and not on gossip or cyberbullying, another example of how familiar (but no less unpleasant) behavior has 'simply' moved online (see, www.abajournal.com/news/cyberbullying_suicide_cant_be_prosecuted and www.usatoday.com/news/nation/2008-02-06-Cyberbullying_N.htm; subscribers, also see, 'Intimidation Goes Online,' in the April edition of e-Commerce Law & Strategy, www.ljnonline.com/issues/ljn_ecommerce/24_12/news/150257-1.html).

Even worse, for business, U.S. law may restrict even action against the person who posted comments and the Web site operator who made it possible, no matter how harmful the comments may be. Traditionally, when a business was threatened by rumors or false information, the first response was a lawyer's cease-and-desist letter, followed quickly by a request for an injunction to stop the offending behavior. However, today, such a response would be limited by the provisions of a law originally intended to try to police the Internet, the Communications Decency Act of 1996 ('CDA'). (Ironically, that law was a part of the Telecommunications Act of 1996 (www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230”000-.html) to 'prevent obscenity from being widely transmitted over networks'
(in the words of the then Clinton administration). (For the context of the previous reference, see, www.cdt.org/speech/cda/admin_s652_comnts.html.) That law provided a limited immunity for 'providers' of online content. It said, in part, for instance, that: 'No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.' 47 USC Section 230(c)(1).

Offenders Are Tough to Track
Down on the Still Wild, Wild Web

While no law protects the author of the content, beyond the First Amendment's guarantee of freedom of speech and our common law built on it, it can often be difficult to locate the author of an allegedly offensive statement, much less prove or collect damages for any harm that the statement may have caused. Presumably, the target could have pursued the individual posters themselves ' if it could find them, and bear the cost of that search and litigation, and establish a tort or trademark claim against each that fit one of the CDA exceptions. The CDA also extended that immunity to providers (e.g., Web site hosts) who acted 'voluntarily ' in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.' 47 USC Section 230(c)(2)(A).

Companies Retain Some
Protection and Recourse

Yet, despite the CDA's clear intent to encourage 'a forum for a true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual activity' (47 USC Section 230(a)(3)), free of concern about litigation to restrict posting of content online, subsection (e), 'Effect on Other Laws,' made clear that the CDA did not eliminate existing laws that provided protection that businesses have traditionally used against improper comments, long before the advent of the Internet. For example, subsection (e)(1) preserved the effect of federal criminal statutes, and (e)(2) preserved intellectual-property law. Subsection (e)(3) did the same for 'state law,' such as traditional common law of torts, provided (ambiguously) that 'No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.' (For a deeper analysis of the effect of Section 230, and the cases to pierce its immunity, see, the analysis by the Electronic Frontier Foundation ('EFF') at http://w2.eff.org/bloggers/lg/faq-230.php.) As the EFF notes, however: 'The courts have not clarified the line between acceptable editing and the point at which you become the 'information content provider.” To the extent that your edits or comments change the meaning of the information, and the new meaning is defamatory, you may lose the protection of Section 230.

The WIN Case

In the more than a decade since passage of the CDA, these exceptions have provided grounds for firms to try to defend their reputation online ' and have shown that often, the traditional 'legal' response may not be the best tactic because of the CDA limits. For example, a recent federal trial court decision, Whitney Inform-ation Network, Inc., v. Xcentric Ventures, LLC, et al., USDC M.D. FL (Feb. 15, 2008) (see, www.citmedialaw.org/sites/citmedialaw.org/files/2008-02-15-Summary%20Judgment%20Opinion.pdf), rejected an attempt to remove allegedly defamatory postings about the Whitney Information Network ('WIN') Web site business on The Rip Off Report consumer Web site. The target claimed that the Web site's creation of categories into which individual consumers could post comments, including such opinion-loaded topics as 'outrageous and popular rip-off,' or 'unusual rip-off,' took it outside the CDA immunity described above. Although the target was ultimately unsuccessful, the arguments to avoid the CDA limits illustrate the theories that businesses can use to try to defend themselves (and that have been successful in other jurisdictions). The opinion, it should also be noted, contains an extensive discussion of the conflicting case law on which such defenses have been based.

With little discussion, the court ruled that the Web site's creation of categories into which consumers could post content about a business, and the encouragement of such postings, did not make it an 'information content provider' outside the CDA immunity. '[T]he mere fact that Xcentric provides categories from which a poster must make a selection in order to submit a report on the ROR Web site is not sufficient to treat Defendants as information content providers of the reports about WIN that contain the 'con artists', 'corrupt companies', and 'false TV advertisements' categories. Rather, the authors of the postings made the decision to select these categories to describe WIN.'

The court also ruled that the Web site's encouragement of such postings did not suggest any evidence that it had 'played a role in creating or developing the postings regarding WIN that are the subject of the instant action.' The challenged conduct included 'active solicitation of visitors to post reports about companies that rip-off consumers,' an 'active role in shaping the content of the postings on the ROR Web site by providing guidance to users regarding what to think about in preparing their reports and what type of reports are selected as 'Top Rip Off Reports,” 'sell(ing) a 'Revenge Guide' on the ROR Web site,' 'sell(ing) advertising and solicit(ing) donations on the ROR Web site,' and 'offering ' a program to companies who wish to avoid having reports posted about them on the ROR Web site.'

Getting Around Some Limits

While WIN did not succeed on the facts of its case, the court at least considered several defensive theories to get around limits created by the CDA. In other cases, however, courts have been more willing to allow companies to defend themselves. For example, a wedding photographer was allowed to try to attempt to silence a Web site established by an unhappy customer, both because the Web site's use of copyrighted images infringed the photographer's copyrights in his photos and because the photographer sufficiently stated law claims of defamation, false light, privacy invasion and interference with prospective economic advantage [both exceptions listed in Section 230(e) of the CDA). Steven Matteo d/b/a Steve Matteo Photography v. Howard Rubin, 2007 WL 4294734 (N.D. Ill, Dec. 3, 2007); see, www.judicialview.com/index.php?m_menu=2&categ=55&post=1706]. A Pittsburgh attorney representing himself is also trying to pierce through claims of CDA immunity to pursue a Web site that posted and labeled false information.

Another well-publicized case involves New Jersey prosecutors using the criminal-law exception to CDA immunity to pursue JuicyCam pus.com, a site founded 'with the simple mission of enabling online anonymous free speech on college campuses' ' such as the right to view the hottest students (see, www.abajournal.com/news/nj_prosecutors_investigate_juicycampus_site). Perhaps that is why JuicyCampus expressly advises users that: 'It is not possible for anyone to use this Web site to find out who you are or where you are located,' and warns that: 'You should take everything you read with a large grain of salt' (see, www.juicycampus.com/faqs.php). It also provides 'tips for the extra-cautious' on how to comment anonymously. Despite all the warnings at the site, New Jersey's Attorney General has begun an investigation under the state's Consumer Fraud Act, for the site allegedly failing to honor its terms and conditions about acceptable postings. (In fact, the site's founder recently acknowledged that such pressure might require it to turn over information, under exceptions to its privacy policy not advertised as prominently as 'always' and 'anonymous.')

More recently, in an employment case, rather than a business-related case, the U.S. District Court for the Southern District of New York refused to allow a blogger to use the CDA to protect himself against claims of workplace harassment for forwarding offensive e-mail (see, www.thelen.com/tlu/JohnDoeVCityofNewYork.pdf). 'Tefft's argument that his e-mails were akin to a blog, Web site, or listserv because he forwarded third-party content that he found relevant or interesting also fails. When Tefft attached his own commentary to his listserv, he ceased to be a passive host of third-party information. ' When Tefft added his own allegedly tortious speech to the third-party content he forwarded, he fell out of the statute's protections.' (Emphasis added.) Here, the CDA immunity was neutralized by identifying content that the alleged offender had added to the prior content ' another tactic that a target could employ to defend itself.

A limit on CDA protection can also arise when the person commenting is talking about his employer or is alleged to have been encouraged to do so by his employer, for the employer's benefit; in that case, the claims go beyond defamation or other matters intended to be blocked by the CDA and enter the area of traditional business-competition torts. For example, claims have been made not only against the widely publicized 'patent troll tracker' blog, but also against its author's employer (see, www.law.com/jsp/article.jsp?id=1205491400004). Although the blogger's employer maintains that 'the comments made in the employee's personal blog represented his own opinions and several of his comments are not consistent with (his employer's) views,' counsel for the target of the blog takes a different view: 'Defendant Frenkel has publicly admitted that he engaged in this activity with the full knowledge and consent of his employer Defendant Cisco Systems, Inc. and because of that, Ward alleges Cisco is vicariously and directly liable for the intentional torts of Frenkel.'

In contrast, Wal-Mart has encouraged an employee blog, Check Out (see, www.checkoutblog.com), where buyers comment ' favorably or unfavorably ' about products. In fact, the Check Out blog recently broke major tech news when an employee disclosed Wal-Mart's preference for the HD DVD format over the competing Blu-Ray system.

Playing Both Sides?

Indeed, RipOffReport.com has created an Internet-ethics issue by selling a service purporting to protect companies against online postings like those on its own site (see, www.phoenixnewtimes.com/2007-02-01/news/the-real-rip-off-report/full).

'[L]awyers have learned about Magedson's willingness to take money from companies to mitigate bad complaints. He calls it his 'corporate advocacy program.' Here's how it works: Businesses pay Magedson a fee, plus a monthly retainer. And in exchange, Magedson makes 'EDitor's comments' next to complaints ' generally saying that the claims are false. Business owners are already allowed to post rebuttals to complaints. But Magedson weighing in has a much stronger effect. It's not 'he said versus she said.' It's an impartial arbiter of truth declaring that one side is right and another side is wrong. And, though Magedson says he investigates every report and would never support a company that wasn't in the right, his comments come without a clear disclosure that he's now on the company's payroll. But it's hard to blame a business for 'ponying up.' In the words of one client: '[O]nline bashing is 'one of the biggest dilemmas facing American business today. All of us are at the mercy of what people might write about us online, even if those people wish us ill will or have nothing to do with our business. It's a very damaging thing.' ' But some businesses question why they should have to pay tens of thousands of dollars just to clear their names from complaints that are false in the first place. Indeed, the program is not cheap. ' Of course, the program is still much, much cheaper ' and more effective ' than litigation.'

If You Want to Spend Less '

For targets not wishing to hire such a service, there are less-expensive alternatives. For example, most tech firms have for long routinely required employees to sign non-disclosure agreements. Today, firms are expanding these non-disclosure agreements to include 'non-blogging' covenants as well. While harmful blog comments from a current or former employee could probably have been pursued under a traditional confidentiality agreement, the specific prohibition should make getting an injunction easier.

Others can resort to independent firms that claim to mitigate the effect of negative online postings in search engine results (see, for example, http://afp.google.com/article/ALeqM5jGUQnYjfCUU4fI5dAXprPn-4bFHA; www.defendmyname.com; www.reputationinsurance.com and http://tcritic.com/archives/best-buy-sends-cease-and-desist-letter-to-blogger-for-writing-about-a-t-shirt or, on a personal level, www.reputationdefender.com/). (Please note that I am not endorsing any firm in this article, but only mentioning them as examples of the services available in the market; there may well be many others that are equally as competent and successful ' or not.)

Responsa on Responses

Of course, responding to attacks can just lead to more attacks, particularly with the ease of doing that offered in the Internet culture, especially when the response is a traditional legal one. In cyberspace, the reply to the story can become bigger than the story itself, leading to further damage to a company's reputation. It is very easy to post a lawyer's ineffective threat letter online for ridicule in the court of public opinion, e.g., http://thelactivist.blogspot.com/2007/02/overzealous-big-pork-stomps-on.html and http://consumerist.com/consumer/followups/best-buy-apologizes-for-sending-cease-and-desist-letter-to-blogger-for-reporting-factual-information-333254.php.

An excellent analysis of business responses to the problem appears at http://sloanreview.mit.edu/wsj/insight/brand/2008/03/10, attempting to balance the need to reply to online commentary against the risks of doing so. To the extent that negative ratings reflect a dysfunctional complaint or help-desk function at an e-commerce firm, improving customer service and overall execution probably will generate more return on the investment than money spent on legal fees. However, as the article notes, legal response may still be needed in selected, sensitive areas; for example, improper financial disclosures, or exposure of confidential or proprietary information.

In Summary

Having reviewed the law, the commentary, and the business considerations, let's return to the questions with which this article began. Should you rate something online, or post a commentary? In the best legal tradition, let me answer with a definitive, unqualified 'Maybe' ' if you like to defend yourself in court, hire an attorney and pay legal fees. While the law is intended to protect your speech online, the many statutory and judicial exceptions give more than ample basis for a legal response, even if it would not ultimately succeed.

The choice, therefore, in posting a rating (or deciding to respond to one), becomes like most other litigation choices ' one of money, and its most productive use (see, 'Betting on Litigation,' in the November 2006 edition of e-Commerce Law & Strategy, www.ljnonline.com/issues/ljn_ecommerce/23_7/news/147584-1.html). How much business will the rating potentially cost my business (much less generate in new business), compared to what it may cost to possibly eliminate it by one of the methods described in this article? I suspect that the choice would be an easy one for most firms.

So, if you want to rate this article, post away ' we won't be waiting, until you get our complaint if we don't like what you say.

Just be careful about what you say. The author of this article is a lawyer, as, in fact, are the writers of just about everything else in this newsletter. Knowing what lawyers do when they get mad ' sue! ' just think about what could happen to you if we don't like what you post. Turning lawyers loose on their own account can be an invitation to spend lots of money in court over a casual posting.

Everyone's a Critic?

But what could happen? With review sites, blogs and commentary appearing everywhere online ' and who knows if anyone other than these sites' creators read them ' let's examine the legal implications of online commentary, everything from writing a review of a book you love on Amazon.com, to registering a domain name and creating a Web site, such as www.myinternetprovidersucks.com (not a real Web site). In the words of the founder of one well-known (and sued) site, Ed Magedson of www.ripoffreport.com: 'This is not the 20^th century anymore, where businesses have the edge over the consumer. It's not 'buyer beware' anymore; it's 'seller beware' because consumers now have the power of the [I]nternet. We're all going to be blogged, good or bad. Get over it and try to respond. It's a sign of the times.' (Quoted in the April 27, 2007, edition of The Newark Star-Ledger; not available online.)

Certainly, there are few barriers to posting comments, whether by a competitor, a disgruntled employee or a former customer. Online, it can often be done anonymously (and, as noted below, some ratings sites go out of their way to promote that anonymity). Since the earliest days of online content: 'On the Internet, nobody knows you're a dog' has been the shorthand way of expressing not only the need for caution when receiving messages from an unknown sender, but also worries of a buyer or seller, individual or retail, over whether the other party and the advertised item ' or an entire inventory ' really exists. Some sites now even use people's desire to vent about businesses ' and the human curiosity that draws us to read these ventings of emotion and other statements ' as part of their business model. Many major retailers, such as Amazon.com and Circuit City, allow customers to review products. Similarly, Angie's List (www.angieslist.com/lp/angieslist1.html) offers reviews of businesses 'straight from the mouths of members who've hired them' for those willing to pay a membership fee. Rip Off Report (www.ripoffreport.com) allows 'consumers' to 'file and document complaints about companies or individuals.' Similar sites include www.consumerreview.com, www.urbanreferrals.com, www.rustreviews.com and www.yellowpages.com, or comparable sites of many local publications looking for new revenue sources. In the world of travel, Trip Advisor (www.tripadvisor.com) boasts of '10 million+ honest travel reviews and opinions from real travelers around the world.' Regardless of the type of good or service, it seems that someone, somewhere, has felt compelled to share ratings about it.

A Web Site Is Not a Newsroom

Although anyone can post a review online, rarely are the reviews vetted for the knowledge or independence necessary to provide a worthwhile review, other than comments by others reading and the posting of these comments and reviews online ' the reader must consider the source and evaluate its merits. The Wikipedia model of collaborative scholarship has simply been applied to shopping. Some sites, though, try to provide a rough measure of objectivity by rating the raters, such as Amazon.com's ranking of reviewers (see, www.amazon.com/review/top-reviewer-faq.html), or eBay's 'Feedback Profile,' at http://pages.ebay.com/services/forum/feedback.html. Indeed, sites that provide ratings contain the typical legal language disclaiming any responsibility for the contents, as is described immediately below:

TripAdvisor takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is TripAdvisor liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, TripAdvisor is not liable for any statements, representations or Content provided by its users in any public forum, personal home page or other Interactive Area (from, www.tripadvisor.com/pages/terms.html).

Amazon.com has similar limitations. For instance: 'Amazon reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content. ' Amazon takes no responsibility and assumes no liability for any content posted by you or any third party' (see, for instance, www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=508088).

The Rip Off Report 'encourage(s) and even require(s) authors to only file truthful reports,' but 'does not guarantee that all reports are authenic [sic] or accurate. Be an educated consumer. Read what you can and make your decision based on an examination of all available information.'

Perhaps the philosophy of online rating and reviewing was best expressed by eBay founder Pierre Omidyar, in February 1996, shortly after eBay was founded:

Now, we have an open forum. Use it. Make your complaints in the open. Better yet, give your praise in the open. Let everyone know what a joy it was to deal with someone. Above all, conduct yourself in a professional manner. Deal with others the way you would have them deal with you. Remember that you are usually dealing with individuals, just like yourself. Subject to making mistakes. Well-meaning, but wrong on occasion. That's just human. We can live with that. We can deal with that. We can still make deals with that. Thanks for participating. Good luck, and good business!Regards, Pierre Omidyar (see, http://pages.ebay.com/services/forum/feedback-foundersnote.html).

As a result, firms whose reputation rides on the reviewers ' especially e-commerce firms, whose presence and customers exist only online ' have little control over their online reputation, when others don't follow Omidyar's modern restatement of the Biblical 'Golden Rule.' Even worse, postings can last online indefinitely, and the cost in time and aggravation to find them, much less police them, can be immense. As one colleague pointed out, if you were called a name on the playground, you may have had a fight and received or given a black eye, but the dispute was soon over. Online, in contrast, criticism of your business can last forever, and spread almost instantly. (In fact, one academic, Daniel J. Solove, has examined the social implications of such postings in The Future of Reputation: Gossip, Rumor and Privacy on the Internet, (see, www.amazon.com/Future-Reputation-Gossip-Privacy-Internet/dp/0300124988/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1207311063&sr=8-1). Solove cites as an example how a local, forgettable event ' a dog relieving itself on a Korean subway ' became an international phenomenon when filmed and posted for the world to see.

Back to Business

In this article, however, I am focusing solely on business criticism, and not on gossip or cyberbullying, another example of how familiar (but no less unpleasant) behavior has 'simply' moved online (see, www.abajournal.com/news/cyberbullying_suicide_cant_be_prosecuted and www.usatoday.com/news/nation/2008-02-06-Cyberbullying_N.htm; subscribers, also see, 'Intimidation Goes Online,' in the April edition of e-Commerce Law & Strategy, www.ljnonline.com/issues/ljn_ecommerce/24_12/news/150257-1.html).

Even worse, for business, U.S. law may restrict even action against the person who posted comments and the Web site operator who made it possible, no matter how harmful the comments may be. Traditionally, when a business was threatened by rumors or false information, the first response was a lawyer's cease-and-desist letter, followed quickly by a request for an injunction to stop the offending behavior. However, today, such a response would be limited by the provisions of a law originally intended to try to police the Internet, the Communications Decency Act of 1996 ('CDA'). (Ironically, that law was a part of the Telecommunications Act of 1996 (www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230”000-.html) to 'prevent obscenity from being widely transmitted over networks'
(in the words of the then Clinton administration). (For the context of the previous reference, see, www.cdt.org/speech/cda/admin_s652_comnts.html.) That law provided a limited immunity for 'providers' of online content. It said, in part, for instance, that: 'No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.' 47 USC Section 230(c)(1).

Offenders Are Tough to Track
Down on the Still Wild, Wild Web

While no law protects the author of the content, beyond the First Amendment's guarantee of freedom of speech and our common law built on it, it can often be difficult to locate the author of an allegedly offensive statement, much less prove or collect damages for any harm that the statement may have caused. Presumably, the target could have pursued the individual posters themselves ' if it could find them, and bear the cost of that search and litigation, and establish a tort or trademark claim against each that fit one of the CDA exceptions. The CDA also extended that immunity to providers (e.g., Web site hosts) who acted 'voluntarily ' in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.' 47 USC Section 230(c)(2)(A).

Companies Retain Some
Protection and Recourse

Yet, despite the CDA's clear intent to encourage 'a forum for a true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual activity' (47 USC Section 230(a)(3)), free of concern about litigation to restrict posting of content online, subsection (e), 'Effect on Other Laws,' made clear that the CDA did not eliminate existing laws that provided protection that businesses have traditionally used against improper comments, long before the advent of the Internet. For example, subsection (e)(1) preserved the effect of federal criminal statutes, and (e)(2) preserved intellectual-property law. Subsection (e)(3) did the same for 'state law,' such as traditional common law of torts, provided (ambiguously) that 'No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.' (For a deeper analysis of the effect of Section 230, and the cases to pierce its immunity, see, the analysis by the Electronic Frontier Foundation ('EFF') at http://w2.eff.org/bloggers/lg/faq-230.php.) As the EFF notes, however: 'The courts have not clarified the line between acceptable editing and the point at which you become the 'information content provider.” To the extent that your edits or comments change the meaning of the information, and the new meaning is defamatory, you may lose the protection of Section 230.

The WIN Case

In the more than a decade since passage of the CDA, these exceptions have provided grounds for firms to try to defend their reputation online ' and have shown that often, the traditional 'legal' response may not be the best tactic because of the CDA limits. For example, a recent federal trial court decision, Whitney Inform-ation Network, Inc., v. Xcentric Ventures, LLC, et al., USDC M.D. FL (Feb. 15, 2008) (see, www.citmedialaw.org/sites/citmedialaw.org/files/2008-02-15-Summary%20Judgment%20Opinion.pdf), rejected an attempt to remove allegedly defamatory postings about the Whitney Information Network ('WIN') Web site business on The Rip Off Report consumer Web site. The target claimed that the Web site's creation of categories into which individual consumers could post comments, including such opinion-loaded topics as 'outrageous and popular rip-off,' or 'unusual rip-off,' took it outside the CDA immunity described above. Although the target was ultimately unsuccessful, the arguments to avoid the CDA limits illustrate the theories that businesses can use to try to defend themselves (and that have been successful in other jurisdictions). The opinion, it should also be noted, contains an extensive discussion of the conflicting case law on which such defenses have been based.

With little discussion, the court ruled that the Web site's creation of categories into which consumers could post content about a business, and the encouragement of such postings, did not make it an 'information content provider' outside the CDA immunity. '[T]he mere fact that Xcentric provides categories from which a poster must make a selection in order to submit a report on the ROR Web site is not sufficient to treat Defendants as information content providers of the reports about WIN that contain the 'con artists', 'corrupt companies', and 'false TV advertisements' categories. Rather, the authors of the postings made the decision to select these categories to describe WIN.'

The court also ruled that the Web site's encouragement of such postings did not suggest any evidence that it had 'played a role in creating or developing the postings regarding WIN that are the subject of the instant action.' The challenged conduct included 'active solicitation of visitors to post reports about companies that rip-off consumers,' an 'active role in shaping the content of the postings on the ROR Web site by providing guidance to users regarding what to think about in preparing their reports and what type of reports are selected as 'Top Rip Off Reports,” 'sell(ing) a 'Revenge Guide' on the ROR Web site,' 'sell(ing) advertising and solicit(ing) donations on the ROR Web site,' and 'offering ' a program to companies who wish to avoid having reports posted about them on the ROR Web site.'

Getting Around Some Limits

While WIN did not succeed on the facts of its case, the court at least considered several defensive theories to get around limits created by the CDA. In other cases, however, courts have been more willing to allow companies to defend themselves. For example, a wedding photographer was allowed to try to attempt to silence a Web site established by an unhappy customer, both because the Web site's use of copyrighted images infringed the photographer's copyrights in his photos and because the photographer sufficiently stated law claims of defamation, false light, privacy invasion and interference with prospective economic advantage [both exceptions listed in Section 230(e) of the CDA). Steven Matteo d/b/a Steve Matteo Photography v. Howard Rubin, 2007 WL 4294734 (N.D. Ill, Dec. 3, 2007); see, www.judicialview.com/index.php?m_menu=2&categ=55&post=1706]. A Pittsburgh attorney representing himself is also trying to pierce through claims of CDA immunity to pursue a Web site that posted and labeled false information.

Another well-publicized case involves New Jersey prosecutors using the criminal-law exception to CDA immunity to pursue JuicyCam pus.com, a site founded 'with the simple mission of enabling online anonymous free speech on college campuses' ' such as the right to view the hottest students (see, www.abajournal.com/news/nj_prosecutors_investigate_juicycampus_site). Perhaps that is why JuicyCampus expressly advises users that: 'It is not possible for anyone to use this Web site to find out who you are or where you are located,' and warns that: 'You should take everything you read with a large grain of salt' (see, www.juicycampus.com/faqs.php). It also provides 'tips for the extra-cautious' on how to comment anonymously. Despite all the warnings at the site, New Jersey's Attorney General has begun an investigation under the state's Consumer Fraud Act, for the site allegedly failing to honor its terms and conditions about acceptable postings. (In fact, the site's founder recently acknowledged that such pressure might require it to turn over information, under exceptions to its privacy policy not advertised as prominently as 'always' and 'anonymous.')

More recently, in an employment case, rather than a business-related case, the U.S. District Court for the Southern District of New York refused to allow a blogger to use the CDA to protect himself against claims of workplace harassment for forwarding offensive e-mail (see, www.thelen.com/tlu/JohnDoeVCityofNewYork.pdf). 'Tefft's argument that his e-mails were akin to a blog, Web site, or listserv because he forwarded third-party content that he found relevant or interesting also fails. When Tefft attached his own commentary to his listserv, he ceased to be a passive host of third-party information. ' When Tefft added his own allegedly tortious speech to the third-party content he forwarded, he fell out of the statute's protections.' (Emphasis added.) Here, the CDA immunity was neutralized by identifying content that the alleged offender had added to the prior content ' another tactic that a target could employ to defend itself.

A limit on CDA protection can also arise when the person commenting is talking about his employer or is alleged to have been encouraged to do so by his employer, for the employer's benefit; in that case, the claims go beyond defamation or other matters intended to be blocked by the CDA and enter the area of traditional business-competition torts. For example, claims have been made not only against the widely publicized 'patent troll tracker' blog, but also against its author's employer (see, www.law.com/jsp/article.jsp?id=1205491400004). Although the blogger's employer maintains that 'the comments made in the employee's personal blog represented his own opinions and several of his comments are not consistent with (his employer's) views,' counsel for the target of the blog takes a different view: 'Defendant Frenkel has publicly admitted that he engaged in this activity with the full knowledge and consent of his employer Defendant Cisco Systems, Inc. and because of that, Ward alleges Cisco is vicariously and directly liable for the intentional torts of Frenkel.'

In contrast, Wal-Mart has encouraged an employee blog, Check Out (see, www.checkoutblog.com), where buyers comment ' favorably or unfavorably ' about products. In fact, the Check Out blog recently broke major tech news when an employee disclosed Wal-Mart's preference for the HD DVD format over the competing Blu-Ray system.

Playing Both Sides?

Indeed, RipOffReport.com has created an Internet-ethics issue by selling a service purporting to protect companies against online postings like those on its own site (see, www.phoenixnewtimes.com/2007-02-01/news/the-real-rip-off-report/full).

'[L]awyers have learned about Magedson's willingness to take money from companies to mitigate bad complaints. He calls it his 'corporate advocacy program.' Here's how it works: Businesses pay Magedson a fee, plus a monthly retainer. And in exchange, Magedson makes 'EDitor's comments' next to complaints ' generally saying that the claims are false. Business owners are already allowed to post rebuttals to complaints. But Magedson weighing in has a much stronger effect. It's not 'he said versus she said.' It's an impartial arbiter of truth declaring that one side is right and another side is wrong. And, though Magedson says he investigates every report and would never support a company that wasn't in the right, his comments come without a clear disclosure that he's now on the company's payroll. But it's hard to blame a business for 'ponying up.' In the words of one client: '[O]nline bashing is 'one of the biggest dilemmas facing American business today. All of us are at the mercy of what people might write about us online, even if those people wish us ill will or have nothing to do with our business. It's a very damaging thing.' ' But some businesses question why they should have to pay tens of thousands of dollars just to clear their names from complaints that are false in the first place. Indeed, the program is not cheap. ' Of course, the program is still much, much cheaper ' and more effective ' than litigation.'

If You Want to Spend Less '

For targets not wishing to hire such a service, there are less-expensive alternatives. For example, most tech firms have for long routinely required employees to sign non-disclosure agreements. Today, firms are expanding these non-disclosure agreements to include 'non-blogging' covenants as well. While harmful blog comments from a current or former employee could probably have been pursued under a traditional confidentiality agreement, the specific prohibition should make getting an injunction easier.

Others can resort to independent firms that claim to mitigate the effect of negative online postings in search engine results (see, for example, http://afp.google.com/article/ALeqM5jGUQnYjfCUU4fI5dAXprPn-4bFHA; www.defendmyname.com; www.reputationinsurance.com and http://tcritic.com/archives/best-buy-sends-cease-and-desist-letter-to-blogger-for-writing-about-a-t-shirt or, on a personal level, www.reputationdefender.com/). (Please note that I am not endorsing any firm in this article, but only mentioning them as examples of the services available in the market; there may well be many others that are equally as competent and successful ' or not.)

Responsa on Responses

Of course, responding to attacks can just lead to more attacks, particularly with the ease of doing that offered in the Internet culture, especially when the response is a traditional legal one. In cyberspace, the reply to the story can become bigger than the story itself, leading to further damage to a company's reputation. It is very easy to post a lawyer's ineffective threat letter online for ridicule in the court of public opinion, e.g., http://thelactivist.blogspot.com/2007/02/overzealous-big-pork-stomps-on.html and http://consumerist.com/consumer/followups/best-buy-apologizes-for-sending-cease-and-desist-letter-to-blogger-for-reporting-factual-information-333254.php.

An excellent analysis of business responses to the problem appears at http://sloanreview.mit.edu/wsj/insight/brand/2008/03/10, attempting to balance the need to reply to online commentary against the risks of doing so. To the extent that negative ratings reflect a dysfunctional complaint or help-desk function at an e-commerce firm, improving customer service and overall execution probably will generate more return on the investment than money spent on legal fees. However, as the article notes, legal response may still be needed in selected, sensitive areas; for example, improper financial disclosures, or exposure of confidential or proprietary information.

In Summary

Having reviewed the law, the commentary, and the business considerations, let's return to the questions with which this article began. Should you rate something online, or post a commentary? In the best legal tradition, let me answer with a definitive, unqualified 'Maybe' ' if you like to defend yourself in court, hire an attorney and pay legal fees. While the law is intended to protect your speech online, the many statutory and judicial exceptions give more than ample basis for a legal response, even if it would not ultimately succeed.

The choice, therefore, in posting a rating (or deciding to respond to one), becomes like most other litigation choices ' one of money, and its most productive use (see, 'Betting on Litigation,' in the November 2006 edition of e-Commerce Law & Strategy, www.ljnonline.com/issues/ljn_ecommerce/23_7/news/147584-1.html). How much business will the rating potentially cost my business (much less generate in new business), compared to what it may cost to possibly eliminate it by one of the methods described in this article? I suspect that the choice would be an easy one for most firms.

So, if you want to rate this article, post away ' we won't be waiting, until you get our complaint if we don't like what you say.