By Brian Lynch

Within the Communication Decency Act lies the best friend of many websites, the §230 safe harbor which immunizes websites from liability for content posted by the site’s users.  Plaintiffs harmed by online messages are often left to either track down anonymous posters or attempt to get around §230 and go after the website host.  Not surprisingly the broad immunity granted to websites by §230 is controversial and has proponents on the both sides of the immunity spectrum.  One thing is clear though, plaintiffs will continue to try and beat the safe harbor with workarounds.

In the recent lawsuit Levitt v. Yelp!, several advertising clients of the review site Yelp! claimed Yelp! removed user reviews to create fraudulent star ratings of the businesses.  The plaintiffs accused Yelp! of using the lower ratings to extort higher advertising rates in exchange for a higher user rating.  Although the allegations were deemed speculative, the court held the action of removing user reviews was an acceptable editorial function that would not preclude the safe harbor, regardless if done in bad faith

In another recent case, Hopkins v. Doe #1, the plaintiff argued a similar angle claiming fraud by the defendant should trump the safe harbor.  The plaintiff brought a defamation lawsuit against several anonymous posters and the website where the messages were posted.  The plaintiff attempted to get around §230 by claiming the host site fraudulently violated its promise of policing content in a timely manner.  The court rejected the assertion of a violation noting the defendant’s terms of use also “expressly disclaimed liability for any content that is provided or posted by [users] or others and has stated that it is not responsible for any failure or delay in removing any content.”

Nice try, but no dice.

Image “Keyboard in Action” courtesy of Flickr user “lapideo” licensed under Creative Commons BY-NC-ND 2.0 license.

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