The Communications Decency Act, 47 U.S.C. § 230 (the “CDA”), is considered by many to be a law that is a “linchpin” of the Internet. Simply stated, it is responsible for allowing the Internet to operate how it does today.
Under the CDA, popular websites such as Facebook, LinkedIn, Twitter, Ripoff Report, Yelp!, and even Google have immunity from most civil lawsuits and claims arising from publication of third party content. And, under the CDA, websites such as Yelp! have complete discretion to remove, edit, and restrict access to third party content.
Because of the power afforded by the CDA, since the law’s inception, websites across the Internet have been left to their own devices to create policies and make decisions as to when each will voluntarily remove or alter content. It’s no small secret that many sites use this power to profit, and, demand payment in exchange for removing or editing unwanted material.
For example, the website RipoffReport.com has a “Corporate Advocacy Program.” In exchange for payment (and a company’s “commitment to customer satisfaction”), Ripoff Report reviews and updates complaints on its site so they are more favorable to businesses. Once enrolled, the program also allows businesses the opportunity to review and resolve future complaints submitted to the site before they ever get posted. As long as the business keeps making it’s required monthly payments to Ripoff Report, and complies with other aspects of its program, it will be given the chance to resolve complaints and stop content from being posted to RipoffReport.com in the future that is submitted to the site.
Other sites, particularly “cheater sites” (like Cheaterville.com), which primarily host content of individuals outing prior unfaithful romantic partners, allow for removals if an “independent arbitration” service is paid a fee. These same “independent” arbitration services then pay the cheater websites “advertising fees” to be listed on each site as a removal source they work with.
Although the “schemes” and “programs” from site to site vary, the concept is always the same, websites are charging money to remove and/or alter unwanted negative content.
But is this legal?
For businesses and individuals listed on these sites, having to pay money to remove or edit content can feel unfair. In fact, many assert that this type of activity is more than just “unfair,” that it is in fact unlawful, and constitutes extortion. Although there may exist circumstances where this is the case, as the title of this post suggests, a recent ruling by the Ninth Circuit Court of Appeals involving the consumer review website Yelp!, Inc. affirms that most of the time it’s completely legal for a website to demand payment in exchange for removing or altering content.
The case, which was originally filed back in 2010, asserted claims that Yelp! had attempted to extort a group of businesses by trying to unlawfully induce them to buy advertising. The plaintiffs asserted in their Complaint that Yelp representatives had offered to manipulate and even hide negative reviews if a business agreed to buy advertising. The lawsuit also alleged that Yelp had created its own negative reviews of businesses to induce businesses to buy advertising as well.
In its ruling, the 9th Circuit Court of Appeals affirmed a lower court ruling that even if the Plaintiff’s allegations were true, Yelp’s actions did not amount to extortion. The Court found that removing content in exchange for money was not extortion because Yelp has the legal right to post and sequence reviews.
The Court also found that the lawsuit did not state sufficient facts to believe that Yelp had actually created negative reviews of businesses.
The ruling by the court in this case was limited, but significant. For starters, the ruling itself was not that surprising. A website demanding money in exchange for removing or editing content will rarely constitute extortion, if ever. Most states and federal legal definitions of extortion require a “threat” to be present. For example, “unless you pay me, I will post negative/defamatory information that will harm you.” That’s a threat.
Here, the content at issue is already published. There is no threat. The websites at issue have a legal right to have the content published and also have the legal right to remove or edit the content at issue and keep it published. Demanding money to engage or not in engage in behavior that one is already legally entitled to engage in is not illegal, and certainly not extortion.
In this respect, the ruling is significant because it can and likely will be used by other websites to defend themselves against extortion accusations in the future (such as those I mention above).
Nonetheless, the ruling was limited in several respects. The Court made clear that it’s holding did not mean that “no cause of action exists” or could ever exist for extortion in this type of circumstance. I.e., there may be facts and circumstances that can constitute a valid claim. Additionally, the Court stopped short of ruling that websites such as Yelp are immune from claims of extortion under the CDA, which was in part what the lower court had relied upon when originally ruling in Yelp’s favor.
The ruling also means that in the future we are likely going to see more and more websites that gather negative content and demand money to remove it. I’m not sure that’s something that most people are going to like, but it doesn’t appear to be something that is going away any time soon. It will be interesting to see if this ruling continues to stand as websites modify and expand their removal policies. Only time will tell.
The landscape for owners of websites and those posted to them can be confusing. If you or your business is being defamed online and a website is demanding payment to remove or edit the content, or, if you are the owner of a site that is interested in setting up a program or policy to remove content from your site, the Internet attorneys at Meyers Roman Friedberg & Lewis, LPA can assist. Call Aaron Minc at 216-373-7706 today to discuss your matter. Or e-mail me at AMinc@meyersroman.com.