A popular target for aggressive suppression and removal efforts by online reputation management companies and public relations firms, RipOffReport.com has built a controversial reputation as a repository of online reviews intended to help customers research and comment on businesses before and after using their products or services. RipOffReport.com also serves as a magnet for lawyers trolling for plaintiffs and fact patterns that can lead to class action lawsuits and government investigations: “Your information may aid in pursing civil or criminal proceedings against companies engaged in wrongdoing.”
The safe harbor protections included in the Communications Decency Act (CDA) has been applied successfully by Xcentric and its founder Ed Magedson, RipOffReport.com’s parent company, for many years. Several lawsuits against Xcentric regarding the content published on its site have been dismissed under the CDA.
The CDA distinguishes between two vital concepts: interactive computer services (ICS) that host content (i.e. websites) and information content providers (ICP), in other words the parties that literally post or provide content to the ICS. According to the CDA, an ICS is not “treated as the publisher or speaker of any information provided by another information content provider.” Therefore, it comes as no surprise that Xcentric has been liberated from liability in many lawsuits by its ICS status – making Xcentric virtually ‘untouchable’ in cases where libellous material against a plaintiff was posted to its site by a third party.
This defense was strengthened once again by a 1st Circuit Court opinion in the following case. Richard Goren, a Massachusetts attorney, sued an individual regarding two negative comments that were published on RipOffReport.com about Goren. Goren won a non-payment judgment that granted him exclusive rights over the negative comments.
Following this victory, Goren filed a federal suit in Massachusetts, alleging that Xcentric was violating his copyright by not deleting the posts on the site. Goren sought equitable relief and damages, including a declaratory judgment that he owned the copyright to the posts in question, and injunctions that would prevent the company from “continuing to publish, and/or from republishing all or any part” of the two RipOff Reports. It was a clever approach – rather than claim the content was defamatory and seek injunctive relief against the individual(s) who posted the RipOff Report or challenge RipOff Report directly, Goren sought to claim a copyright interest (essentially ownership) over content he never wrote on a Website he had no prior relationship with.
Xcentric claimed that the CDA protected its right to publish and maintain the comments. Goren’s team responded by submitting a strong defence, which pointed out that RipOffReport.com requests its users to sign over their rights to their reports or comments. In other words, they claimed that Xcentric was indeed responsible for the comments on its website as the service provider and the content provider. Moreover, it was discovered that Xcentric promoted its content using search engine optimization (SEO) tactics on various internet search engines, which can, they argued, be viewed as an additional form of publishing.
The District Court ruled against Goren, who then appealed to the 1st Circuit.
Regarding Goren’s copyright claim, the 1st Circuit agreed with the District Court that when the individual who first posted the reports did so, he granted Xcentric a perpetual and irrevocable license to publish and distribute the posts that was still valid.
This case emphasizes the significance of online terms of use and submission terms in relation to consumer reviews, although users frequently gloss over the legalease and finer points of these (usually) boiler-plate documents, they help to define who has ownership over content shared on the Website and who may have legal responsibility for defamatory content published online.
The case was seen as a victory for free speech online, as many advocates consider any efforts to remove or deindex negative reviews or challenge the sites which publish them to be an affront to First Amendment principles in this Digital Age.
It is our considered opinion that online reviews serve a vital and important function and sites publishing online reviews are worthy of legal protection. However, sites which allow anonymous, negative reviews should be held accountable for publishing content that is false and defamatory and can cause measurable harm to an individual or business, especially if these sites earn income online through advertising (essentially profiting on the content it publishes) it cannot hide behind the First Amendment only when it is convenient and profitable.
It is also relevant to note that Free Speech is not absolute. You cannot violate the intellectual property rights of others by claiming such disclosure is permitted under the First Amendment, you cannot share the social security number or bank account details of another online without violating the law. Likewise, defamation and libel have civil and criminal consequences. It is this balance and a reconsideration of the CDA “safe harbor” that will force publishing companies such as Facebook, Yelp and RipOff Report to revisit their terms of use and allow businesses to more effectively challenge the abuse of these publishing platforms when appropriate.
