I have been receiving inquiries about the apparent disappearance of two consumer commentary web sites operated by Justin Leonard, whose rights I (and other colleagues at Public Citizen) have defended in the past — www.infomercialscams.com and www.infomercialratings.com. Said one such correspondent, Antoine Simmons (quoted here with permission):
The answer is that the sites are down for now, and the reason has its roots in both the deep pockets of an infomercial purveyor and, apparently, the efforts of the new owners of the web site to exploit the site for extra profits. But as discussed at the end of the post, there remains some hope that a new version of the site may be restored to the web soon.
Changes in the Infomercial Scams Web Site Under New Owners
The tale begins in the spring of 2008, when Leonard decided to get out of the business of running sites for the review of infomercial purveyors, and sold the InfomercialScams and related web sites to a new owner, a company called Infomercial Consumer Awareness ("ICA"). As Leonard had organized it, both critics and proponents of goods and services sold through television infomercials — including the purveyors themselves — could post either "complaints" or "defenses" relating to both the quality of the products and the sales practices of their marketers. Leonard and his sites had acquired a good reputation for providing an impartial forum for consumers to express their views — positive as well as negative.
The web site was supported by generic advertising, with the same set of ads appearing on every page no matter what the name of the company or product criticized or praised on the page. Leonard refused to allow the competitors of individual criticized infomercial purveyors to direct advertising to the particular pages where they could be seen adjacent to the discussion of the targets of the criticism. The site thus operated produced a modest return for Leonard while he was a student.
The new owners, however, apparently had ideas about how to make more money out of the operation of the web site. At some point during the months after they bought it, they offered what they cynically called a "Consumer Protection Program" that would, at the very least, allow a company that had been criticized on the message boards to purchase special privileges. Review of the web site as it existed under the new owners revealed that, on many parts of the site, numerous laudatory messages were added to the top of every page of "complaints," so that only by scrolling through all of the positive messages could consumers find the criticisms that members of the public had posted.
According to the allegations of a complaint filed by Video Professor — an infomercial purveyor that had previously faced trenchant criticism on the infomercialscams message boards — when inquiry was made about how the "Consumer Protection Program" worked, a representative of the new owners described an extraordinary scheme whereby negative comments could be removed, and praise substituted in its stead, in return for payments of hundreds of thousands of dollars per year.
Comparison to Ripoff Reports
As described by Video Professor’s allegations, the ICA-run InfomercialScams site took to an extreme a model offered by another host for consumer commentary message boards: XCentric Ventures, which runs Rip-off Report. Xcentric’s site includes a "Corporate Advocacy Program" (the name, at least, is a fairer depiction of who is getting the protection). Under XCentric's program, the proprietor of Rip-off Report can be hired to conduct an "investigation"of a criticized company. Although XCentric stresses that critical messages are not removed, it appears that critical messages are buried where most consumers will not see them.
Take as an example the purveyor of "Cash4Gold," currently linked directly from the home page of Rip-off's Corporate Advocacy Program. Rip-off Report’s index page for the company lists several references to XCentric's investigation, and each of the pages containing a consumer criticism features several paragraphs of laudatory text before the posted criticism appears. The criticism may contain only a few lines, but the identical laudatory text about the company — with no specific reference to the criticism or how it was checked or remedied — precedes each criticism. Rip-off Report's web site claims that "[a]s a part of the Corporate Advocacy Program Rip-off Report verifies all Reports and Rebuttals, and will expose those posted erroneously," but on the pages I examined there was no evidence that this had happened.
Similarly, complaints about "Primerica" have been left on the Rip-off Reports web site, but each complaint is preceded by a long discussion that never responds to the specific complaint but includes such truisms as that "the number of complaints against this company, whether through the Internet or other channels, is small when put into the context of its enormous size." Of course, the same point could be made about most of the infomercial purveyors discussed on Rip-off Reports (not to speak of other such message boards). But this point is only displayed above criticisms of companies that have paid their way into the Corporate Advocacy Program.
There is at least a serious conflict of interest that could lead the judicious observer to be skeptical of claims that XCentric has conducted a dispassionate investigation into those who are paying to be investigated. It may well be that XCentric never takes payments specifically for the suppression of criticism, and that its "investigations" are genuinely motivated by the desire to clear improperly accused companies of unfounded allegations. But when I raised these questions, an XCentric representative insisted that it does turn down prospective participants in its Corporate Advocacy Program for a variety of reasons, including a perceived unwillingness to correct or remedy abuse of their customers, and that on rare occasion participants have even been expelled from the program for failure to live up to the commitment to correct abuses. XCentric also claims that companies that enter its program actually do better by their customers as a result.
It is hard to assess the motives of a company that operates on this business model, without a far more detailed investigation than I am in a position to conduct. Is there a consumer-friendly marketing professor out there that might take on an impartial audit of the program to verify XCentric's characterization of its program, as part of a case-study on the impact of consumer review sites? It would surely be interesting to learn more about the realities instead of having to rely on self-serving characterizations from either Rip-off's representatives or its litigation adversaries.
Moreover, XCentric vigorously defends its practices in court, and even if it has suffered some adverse preliminary rulings rejecting its section 230 immunity defenses — such rulings once threatened to make Rip-off Reports a font of bad law — it appears that XCentric has never been brought to judgment by any of the several companies that have accused it of extortionate practices. Rip-off Reports proclaims that it has managed to beat back almost every one of the lawsuits filed against it.
Video Professor Forces the New Owners to Take Down the InfomercialScams Site
Video Professor, an infomercial purveyor with a decidedly checkered reputation, claims to have pretended an interest in signing up for the new InfomercialScams "Consumer Protection Program" in order to find out how much "protection" money it would have to pay. In its complaint against the new owners, Video Professor alleged that its representative was presented with an account of a variety of techniques the new owners were using — including the use of meta tags and keyword advertising techniques to advertise critical accounts to drive more consumers to those criticism (hence increasing pressure on the criticized companies), deliberately selling advertising to direct competitors of the targeted companies, and then charging exorbitant sums to the targets so that they could buy immunity on the web site message board. Whether these allegations are true I cannot say, but they certainly paint an ugly picture. In response to a request for comments on these specifics, ICA would say only that "the allegations of the complaint . . . are inaccurate."
Video Professor sued the new owners, charging them with extortion and racketeering, trademark infringement, and defamation, arguing that the new techniques deprived the owners of the section 230 immunity they would otherwise have enjoyed even for comments genuinely posted on the message boards by consumers. For good measure, Video Professor added Leonard as a defendant, despite the fact that he had sold the web site before any of the new techniques alleged in the complaint had been adopted.
Although the extortionate scheme alleged by Video Professor, if true, was certainly horrific, it would surely have been interesting to litigate the legal questions posed by Video Professor's motion for a preliminary injunction relating to loss of the immunity that section 230 of the Telecommunications Act of 1996 provides for web hosts against liability for content provided by others. Extortion is certainly punishable, but it is not at all clear that allegations that the purpose of hosting a commentary web site was to enable a scheme of extortion would take the host out of section 230 immunity for suits over the content of critical postings that the host did not, in fact, author.
However, representing Leonard, we moved for dismissal and/or summary judgment on grounds of lack of personal jurisdiction, statute of limitations, and section 230 immunity only in light of the fact that Leonard was no longer involved with the web site when the alleged wrongdoing began. Meanwhile, the new owners of the web site concentrated their efforts on settlement discussions, and by mid-June a draft settlement agreement, including removal of all comments about Video Professor from the web site and a promise not to disparage Video Professor — or to host disparaging comments on any web site — was presented to Leonard as a fait accompli.
Leonard refused to have anything to do with the settlement, both because he plans to host comments about companies like Video Professor in the future, and because, having engaged in none of the wrongdoing alleged in the complaint, he was unwilling to be party to a settlement agreement that effectively admitted that the site's criticisms of Video Professor were wrongful.
The draft of the settlement agreement that I saw in June required only that comments about Video Professor itself be removed from the web site. However, apparently, the final settlement also required the new owners to take down the entire infomercialscams.com web site. Shortly after we were told that the settlement had been finalized, the infomercialscams.com web site went dark. Then, a week later, review of WHOIS records revealed that Video Professor itself is the new owner of the infomercialscams.com, infomercialratings.com, and infomercialblog.com domain names.
One of the most troubling aspects of what ICA did with the InfomercialScams web site is that it poisons the well for web hosts whose main interest is in providing a forum for consumer commentary. We at Public Citizen believe that these sites provide a useful service, because they allow those with experience with specific products and services to post information that may provide useful guidance to other consumers. To be sure, we are inclined to think that any sensible consumer will take anonymous reviews with a certain grain of salt, because one can never be sure about the motives or, indeed, the judgment of a given anonymous poster, and anonymity can be used to mask the fact that a given poster is a shill either for the product’s seller or for a rival. But misconduct of the sort allegedly perpetrated by ICA — or even the less egregious example provided by Rip-off Reports — easily feeds a suspicion that companies targeted by criticism would like to entertain, regardless of whether it has any basis in fact, that anybody who hosts comments slamming them, must be engaged in a covert extortion scheme. After all, “why else would anybody diss our wonderfully profitable product, unless they were hoping to get a cut of the action?” Even worse, it tends to confirm the suspicion that some judges harbor about misuses of section 230 immunity.
Truth be told, any consumer complaint message board holds the potential for this sort of abuse, if placed in the hands of an unscrupulous owner. At the very least, companies that are criticized on such message boards may show willingness to pay money to avoid or limit criticism, and some message board hosts walk a fine line with programs comparable to ICA's "Consumer Protection Program." We have certainly had companies offer such payments to our clients, who have always turned them down, because shaking down businesses – legitimate or otherwise – is not what they want to accomplish. Indeed, if it that were their business model, Public Citizen attorneys would not represent them. But even companies that have not tried to bribe their way out of criticism typically claim that message board sites are established for that purpose.
Plans going forward
The lawsuit has now been dismissed, and the parties are preparing to litigate Leonard’s motion for sanctions for having been dragged into the case over the way the site was operated after he sold it.
Meanwhile, precautions were taken to download the entire web site before it was taken down, so that it can be reopened under ownership that is committed to operating the site under the original neutral terms. Leonard is apparently planning to relaunch bigger and better versions of his old sites in the next few months.