by Paul Alan Levy
Accepting an argument advanced by Public Citizen as amicus curiae as well as by Xcentric Ventures, the operator of Ripoff Report, a Florida appeals court has held that section 230's immunity for the providers of interactive computer services extends to requests for injunctive relief and not just to claims for damages. In Giordano v. Romeo, about which I previously blogged here and here, the court said that immunity from "any actions" includes actions seeking injunctive relief.
In our amicus brief, we argued that the fact that the original provider of an allegedly tortious statement joined in seeking the injunctive relief to remove it had no proper bearing on the outcome, not just as a matter of the language of the statute but also as a matter of public policy. Faced with the prospect of an action for damages, it is all too possible that the original speaker will go along with injunctive relief against someone else to avoid facing the expense of litigation (or a damages judgment), regardless of whether she is actually liable for defamation. Thus, a rule allowing injunctions poses some of the same problems of the heckler's veto that makes section 230 immunity so important as a protection for the hosting of uncomfortable truths.
As notable as the short but sweet reasoning about section 230 in the opinion is the searing paragraph in which the Court denounces Xcentric for its “appalling” business practices (Eric Goldman's blog post about the case quotes the relevant paragraph in full). As regular readers of this blog know, I too have expressed concern about Xcentric’s “Corporate Advocacy Program” (see the above-linked posts, as well as this more recent post about PissedConsumer.com). In agreeing with Xcentric on the legal issue, our amicus brief cited concerns about this program as well (see page 14). But although the Florida court also mentioned this aspect of Xcentric's business practice in a footnote that quotes our amicus brief (page 4, footnote 1), the gist of the criticism is not directed to Xcentric’s Corporate Advocacy Program, but rather to an aspect of Xcentric’s business model that is more pervasive on consumer review sites — that “[n]o checks are in place to ensure that only reliable information is publicized” and that Xcentric does not deploy lawyers “to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct.” The court seems to have paid no mind to the problem that paying lawyers to analyze the truth or falsity of posts once they are challenged (not to speak of assessing the motives of the poster) would quickly run any consumer review site out of business.
The Florida court was also wrong in one factual respect. Relying on Xcentric’s own braggadocio about never removing a post, the court faulted Xcentric for refusing to “entertain any scenario in which Xcentric would remove an offending post.” Pages 4-5. In fact, as our amicus brief pointed out (on pages 13-14), Xcentric has a separate "arbitration" program, apart from its Corporate Advocacy Program, whereby it will consent to review of the veracity of specific statements by arbitrators selected by Xcentric, who are empowered to decide thet specific statements should be redacted from a given post. The post as a whole is not removed (thus allowing Xcentric to maintain its stance in that regard). The court of appeals did not address this detail. Giordano's lawyer has indicated in the past that he sees this case as a vehicle to ask the Florida Supreme Court to revisit section 230 immunity, so perhaps these details will be addressed there.
Thanks to section 230 maven Eric Goldman for joining Public Citizen on this amicus brief and to Florida professor Lyrissa Lidsky for being local counsel in the case.