Want to sue online marketplaces for bad reviews? Good luck. Section 230 may protect it.
Sellers on Amazon, e-Bay, Alibaba, Etsy, and other platforms have to deal with bad reviews. Some bad reviews are honest opinions of the customer. Others are downright false. Sellers might be at a loss of what to do when a customer or platform refuses to remove content. The U.S. Court of Appeals for the Eleventh Circuit just determined that suing the marketplace is not the route to go based on § 230 of the Communications Decency Act.
Section 230 of the Communications Decency Act provides immunity for websites about third-party content. It shields them from liability for their user's actions. But, the platform cannot be actively involved in creating or editin the content. It is fair to say the Internet as we know it would not exist without this law. Twitter, Facebook, YouTube, TikTok, and others would be flooded by suits if they were responsible for what their users post. But, the disinformation and hate speech puts money in these companies' pockets. They have also been found to push such content on users. So, some lawmakers have called for the repeal of Section 230. For now, it is in place and the Eleventh Circuit applied it.
In McCall v. Amazon, the Eleventh Circuit considered the following facts:
(1) a Customer purchases Burberry scarf from seller on Amazon;
(2) Amazon is exactly what we all know Amazon is;
(3) the Customer leaves review saying scarf not a Burberry scarf;
(4) Customer and Amazon refuse to remove review, which Seller claims is false;
(5) Seller sues Amazon (and Customer) for defamation.
Based on the description of Section 230 above, you might already know what the trial court did. It dismissed the case against Amazon. It determined Amazon is not liable for what its users put on the website under Section 230. On appeal, the Eleventh Circuit agreed.
There were other issues about jurisdiction involved. Four our purposes, though, the Eleventh Circuit held:
- Amazon is an interactive computer service provider.
- Amazon did not develop the review. The Customer did. Amazon was merely an information content provider. Unlike another case, Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, where the platform curated the content by having drop-down options—participating in the creation of the problematic content—the review was fully the creation of the Customer.
Curiously, the Seller surely agreed to Amazon’s terms and conditions. They would seem to require the Seller to arbitrate the dispute. This issue was not touched on by the Eleventh Circuit.
What are the lessons here? If you want to sue someone for a review or other content online, then you need to sue only the creator of the content, not the platform. Of course, that individual’s pockets are not as deep as Amazon’s. But, you will likely lose based on a Section 230 defense.
Conversely, as a platform, be sure that you do not take part in content creation by providing problematic dropdowns or inputs.
Amazon v. McCall, No. 22-11725 (11th Cir. June 12, 2023) (unpublished)