Information Counts. That’s the title of this blog. And it’s an indisputable fact. Information is – and has been for at least 20 years – the currency of our economy, providing consumers, regulators and the general public information about business, practices and events.
A critical, and even indispensable, factor in the development of the information economy is Section 230 of the Communications Decency Act, which was part of the massive Telecommunications Reform Act of 1996. That subsection provides that “[n]o 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.”
It means, essentially, that an interactive website (think Angie’s List) is not liable for content that was created by others. So, if there is a false and defamatory post on Angie’s List about a particular business, the business can sue the “speaker” (e.g., the person who authored the post), but generally cannot sue Angie’s List. The impact of this law cannot be overstated. If it did not exist, websites like Yelp, Angie’s List, Amazon and eBay, and hundreds others, might not exist because, rather than facing liability for the posts of their users, they would simply shut down.
Section 230 celebrated its 20th anniversary earlier this year. It has been a challenging year for the law, with several courts issuing perplexing decisions that are eroding the core protections provided by the statute, and a pending cert petition which argues that many of the decisions surrounding Section 230 have been wrongly decided.
But a recent decision – Kimzey v. Yelp – gives hope to those of us who believe that Information Counts. There, a user named “Sarah K” posted a negative review about Douglas Kimzey’s locksmith business, warning, in all caps, that “THIS WAS BY FAR THE WORST EXPERIENCE I HAVE EVER ENCOUNTERED WITH A LOCKSMITH. DO NOT GO THROUGH THIS COMPANY . . . CALL THIS BUSINESS AT YOUR OWN RISK.”
Kimzey sued Yelp, alleging that Yelp created the reviews itself, by copying them from another website and reposting them on Yelp’s website or, alternatively that Yelp was responsible for Sarah K’s reviews because it “transformed” the reviews into its own advertisements or promotions and because Yelp served as an “author” of the one-star rating by “designing the star image and creating the color” of its star rating system.
Both the trial court and the Ninth Circuit disposed of the first argument, finding that the complaint did not plead any facts sufficient to show that this was a plausible claim. With respect to the second theory of liability, the courts easily rejected it, explaining that Yelp’s rating system was “based on rating inputs from third parties,” “which reduces this information into a single, aggregate metric” based upon “user-generated data.” Because the data was created by third parties, and not Yelp, the Ninth Circuit agreed that Section 230 barred the claim.
The Kimzey decision is a powerful reminder that Section 230 remains a formidable shield against liability in the “typical” case where the interactive website is sued for content it did not create.