Legal: Eliminating Bad Reviews Not So Simple

I recently had a terrible customer service experience when buying from a well-known ecommerce business. The experience was so bad that it forced me to write not just one bad review, but, rather, to post on seemingly every review website that a consumer could experience. A customer support experience this poor could only be remedied by a change in coverage, I thought.

But scenarios like mine are an ecommerce merchant’s nightmare, which explains why it is important for merchants to comprehend the law surrounding user testimonials and the implications for poor customer service.

Liability of Internet Service Providers

First, let us begin with some history. At common law, a publisher of content could be held accountable to the same extent as the author of that content. It follows that a paper could be held responsible for a false and defamatory post even when a columnist penned it. And when Internet publishers grew in prominence, this philosophy became a problem for them.

Two New York cases brought publicity to this problem. In a 1991 case, Cubby, Inc. v. CompuServe, Inc.. , a columnist posted defamatory comments about a rival through the CompuServe service. The competitor sued CompuServe for libel, but the court ruled that CompuServe couldn’t be held liable as a publisher of the defamatory content since CompuServe didn’t review it before it was posted. Without understanding, the court concluded, CompuServe couldn’t be held responsible for the defamation.

In 1995, however, another court took a contrary position. In Stratton Oakmont Inc., v. Prodigy Servs. Co.. , Prodigy, such as CompuServe, was an online service provider. Prodigy hosted several bulletin boards, including one titled “MoneyTalk.”

But unlike CompuServe, Prodigy monitored and moderated its message boards and deleted a few of the messages which contained offensive content. Since Prodigy edited the content of its message boards, the court concluded, it might be held liable for the republication of defamation. To comply with the court’s reasoning, Prodigy would need to hire someone to track the 60,000 posts that it received a day or give up moderation entirely.

The U.S. Congress saw this as an issue. Not only did this judgment impose additional risks on emerging Internet companies, but in addition, it created a disincentive to track content. To solve this issue, the Communications Decency Act of 1996 was enacted. Though portions of the law regarding pornography and child safety were ultimately ruled unconstitutional, Section 230 survived. It has remained in place for this day.

Section 230 of the Communications Decency Act states that no provider of an interactive computer service will be treated as the publisher or speaker of an information content provider. This means that an online service provider — such as Yelp, Google, or Rip Off Reports — won’t be held responsible for the reviews posted by its users if these posts are false and defamatory. Furthermore, a service provider can’t be held responsible because of its good faith efforts to monitor or restrict access to content. This means that, unlike the Prodigy case, a service provider is now able to moderate its material without fear.

Section 230 of the Communications Decency Act states that no provider of an interactive computer service will be treated as the publisher or speaker of an information content provider.

For review websites, Section 230 provides nearly blanket immunity from claims of defamation. Thus, no matter whether a review is defamatory, a service provider such as google, Facebook, or Yelp probably can’t be held responsible for that defamation.

For Ecommerce, a Cost-Benefit

Thus, an ecommerce merchant that’s the subject of defamatory or untrue testimonials on these sites can’t easily have them eliminated. Instead, the merchant seeking to get rid of a review should first file a lawsuit against a John Doe, send a subpoena to the service provider to obtain John Doe’s IP address, and then send a subpoena to John Doe’s Internet service provider to try to identify the poster of this review. If the poster can be identified, the complaint can be amended and the lawsuit can proceed against the named party. If, however, the poster uses a proxy server, VPN, or other anonymization applications, there’s a chance they might never be found.

Europe requires a different approach, however. Article 14 of the E.U. Electronic Commerce Directive states that service providers are given immunity from liability only where they don’t have real knowledge of their defamation or, upon receiving such expertise, don’t act immediately to remove the defamatory information.

Consequently, if your organization is located in the E.U., and if it’s the victim of a false and defamatory inspection, a service provider must remove that inspection upon receipt of notice that the inspection is defamatory. If the service provider doesn’t get rid of the inspection, it may be held liable for defamation. This provides European ecommerce merchants with a less expensive remedy to get rid of false and defamatory reviews.

The best way to prevent defamatory testimonials, however, is to give decent customer service. Since the cost of litigation far outweighs the cost of most services or products, an ecommerce merchant ought to know about this cost-benefit when determining if it ought to refund a complaining customer’s money. The brief term-pain of a refund is often much better than the long-term pain of litigation, or bad reviews.

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