What does it mean to be an Online Review Site?


What is Section 230?

Section 230 is the “47 U.S. Code § 230 – Protection for private blocking and screening of offensive material” and is part of the Communication Decency Act. This section has protected many internet intermediaries, encouraging innovation and development, and is considered one of the important law protecting internet speech. Section 230 states 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.”[1] This means that internet intermediaries are:

  1. Protected from liability for what their users post
  2. Protected from liability for their actions in blocking content that they object
  3. Protected from liability in creating technical tools to assist in the restriction of access to content.

Without Section 230, online platforms would have to screen and monitor all the posts and comments that were submitted.

How does Section 230 apply to Review Platforms?
Section 230 was established as part of the CDA in 1996 and it protects internet service providers and various “interactive computer service providers” that publishes 3rd party content. Review sites are included in Section 230 and this is crucial for such platforms because while most reviews are positive, some are negative reviews which might negatively affect businesses. As a result, businesses turn to such platforms with legal action instead of the speaker, which is why Section 230 is important in protecting these platforms.

Suppose you are a review platform and you deliberately removed content, do you then become liable for the content?
Under Section 230, review platforms are protected to edit and remove content: “No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken 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.” For that reason, review platforms can remove entire posts, if needed. However, there is still some limitations on to what extent online review sites can edit and change the content of the original message. Internet intermediaries are not to alter the meaning of the content.

What are some of the social implications for allowing Section 230 immunity on review sites?
Immediacy of Damage
Section 230 is widely recognized for allowing the proliferation of internet speech by removing internet provider’s liability for third-party content that they publish. However, there are many social implications and effects for this. Online review platforms have a very large audience reach and therefore, false or defamatory reviews can cause a great deal of damage to businesses. Moreover, the damage can be quickly felt for businesses. Even though the post was falsely made, the time needed to file for take-down may already cause significant damages to individuals or business owners.

Democratizing Readers Ability to be a Critic
Before the age of the internet, critiquing was mostly remained as a job for journalists, editors and the like. Back then, individual complaints about businesses was mostly done through word of mouth and therefore, it was unlikely that people’s complaints would reach a massive audience. However, that has changed as everyone is now able to voice their opinion, good or bad, true or false, with the rise of online platforms. Nowadays, it is very easy for customers and users to post a negative review about their experience as a way to express themselves.

Implications on Marketing and Branding
Section 230 has allowed review sites to flourish, providing consumers the ability to evaluate and research on companies and products. Consumers are now able to quickly search online and gather information about the company or product. Moreover, this has made marketing incredibly difficult as companies try to ‘correct’ their image from what is portrayed on online review sites, forums and more.

Technical Challenges in Finding Original Author
Trying to find the author of certain content can be difficult, particularly for platforms that support anonymity. In that case, take-down requests can be difficult as it is technically challenging to trace the author of a defamatory or false post on a review site.

What if the posted content infringes on copyright laws?
Challenges in Finding the Owner of the Content
However, in regards to content that crosses with copyright laws, this might bring up a tricky situation. In that case, under 17 U.S. Code § 512, or referred as the DMCA, service providers are under some protection, only if they comply with certain criteria: “service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider.” DMCA will require the provider to take down the content immediately after the notice is filed.

What are some of the cases that demonstrate Section 230 on Review Sites?
We are going to give examples of two cases against Yelp where section 230 protected it against business seeking legal action over the material they posted on their site as well as show ‘discretion’ they have over the information they receive as well as show.

1. Levitt v. Yelp

Why is this case selected?
This case is a good representative of the majority of concerns related to online review platforms. The damage to businesses from receiving negative reviews on such platforms has become so powerful that businesses are prone to raise questions of unfairness, skepticism towards online review sites.

Case Details/Facts:
In March 2010, Boris Levitt, owner of Renaissance Furniture Restoration in San Francisco brought a case against Yelp, the online business review website. Levitt claims that the review site manipulates and manufactures reviews as a way to coerce businesses to advertise on their site. Levitt argues: “Yelp may manipulate which user or customer reviews are filtered (essentially suppressed from general public view and not considered as part of the star rating), which affects and controls the business’s overall star rating.” Levitt claims that Yelp was involved in creating negative comments, which the court later dismissed for lacking “factual evidence.”

Moreover, on Yelp’s review terms, they have explicitly stated that Yelp has the ability to remove content. However, the design of Yelp focuses on the business’s overall ratings. Any removal of the posts has a direct effect on the overall ratings of the business: “Yelp may also represent to a business that it has the ability to remove reviews, which would affect and control the business’s overall star rating.”

How Section 230 Was Applied?
In his ruling Judge Chen used section 230 to rule that Yelp can not be held liable for what is posted on their site based on the fact that they were not the ‘internet content provider’. In his opinion he asserted that “§ 230(c)(1) contains no explicit exception for impermissible editorial motive.” And contrasted it with section 230(c)(2)’s which has a “good faith” requirement, saying that the absence of a parallel “good faith” requirement in 230(c)(2) means editorial intent is irrelevant to 230(c)(1).

He further went on to assert that “traditional editorial functions often include subjective judgments informed by political and financial considerations….Determining what motives are permissible and what are not could prove problematic.” He concluded that trying to force Yelp! to defend its review policy would ultimately make them defend the reviews they showed on a case by case basis.

Our opinion on whether the outcome of this case decision is fair:
The decision was a fair decision as it provided immunity for platforms like Yelp against being charged with content they show as their own content. Writing for the New York time, internet cases blogger Eric Goldman noted that, “Having that airtight immunity means websites can make tough editorial decisions without worrying what kind of story those decisions will ultimately tell in court” and believes that ultimately this gave Yelp ability to manage their customer reviews websites however they want. [2]

As such this ruling gave review websites discretionary control over how to handle customer reviews and thus can resist complaints from business seeking to have certain review taken down or request what they should do with reviews. This ruling in contrast with the Fair Housing Council of San Fernando Valley, et al. v. Roommates.com LLC  (Majority Opinion Only) where the court ruled the Roommates encouraged/promoted what users posted hence should be liable. The judgement shows that as long as an website is not actively involved in helping structure what users post, it can not be held liable. An aggrieved person/business is thus only supposed to sue against the creator of the post/review.

2. Demetriades v. Yelp

Why is this case selected?
This case outlined what online review sites are able to do with the reviews they get and the protection that they get as a ‘Good Samaritan.’

Case Details/Facts:
In 2012, Demetriades, an operator of three restaurants in Mammoth Lakes, California, filed a case against the online business review website Yelp citing untrue or misleading advertising and unfair business practices because of ability its system for filtering comments and reviews. The Yelp website is used by many people to review businesses that they would have used and can either give a comment about the business or give a review on a scale of 0 to 5 with 5 being the best rating. Yelp on its part filters the reviews and comments given by users claiming it ‘tries to rank them according to their usefulness. The actual review criteria used for ranking is not publicly disclosed to anyone hence some businesses feel it only shows negative comments.

How was Section 230 Applied?
The court in its ruling asserted that “statements regarding the filtering of reviews on a social media site such as yelp.com are matters of public interest” and hence was protected by section 230. Essentially the court ruled that a website cannot be held accountable on what it publishes based on information provided by third parties.

The following are some final thoughts on our guide for online review sites.

What are the social obligation of review sites?
Review sites are oftentimes designed in a way that makes it look like a free space for individuals to voice their concerns. Authors become unaware that they are still liable for what they share on the internet. For example, in the Dietz vs Perez case, Perez who is the author of a Yelp review post was charged for monetary fees in damages. Perez said that “when she posted her reviews it never occurred to her that she might end up in court or on the hook for thousands of dollars in legal fees — not to mention the monetary damages.” Review sites should strive to make it obvious for people to know that they even though they are not directly messaging businesses, they are still liable and responsible for what they write.

What should review sites strive to show?
The judgement in the case of Demetrias vs Yelp in line with the Congressional findings outlined in section 230, that ‘interactive computer services’ provided users with forums for various discourse hence what is showed on review sites is of public concern. Online review sites should thus strive to show material that is pertinent to the audience, so be deemed ‘reliable’ and thus remain useful. Furthermore as data volume and velocity increases the decision allows review systems to deal only with managing the data instead of the worrying too much on the content. With this burden removed sites can focus more on innovation aligned to making the forums better in the users’ view.

 -Chalenge Masekera & Jenny Lo