Manipulating User Postings Removes Service Provider from CDA Immunity

by Holland & Knight LLP

As detailed on this blog before, the immunity from "publisher or speaker" liability for interactive computer service providers under the Communications Decency Act (CDA) is broad and generally encompasses a wide variety of actions taken by these entities. That said, the immunity can be lost in certain scenarios. Whenever the service provider manipulates or contributes to the user-generated content on its computer services platforms, it risks losing the immunity, and thereby engenders the potential for liability under the CDA.

Moving and Storage, Inc. v. Panayotov, No. 12--12262--GAO, 2014 WL 949830 (D. Mass. Mar. 12, 2014) is an example of how manipulation of user-generated content can preclude a claim of immunity under the CDA by a service provider. The plaintiffs consisted of corporations that provided moving services. They alleged that the defendants, the operators of a moving company review website called, deleted positive customer reviews of their companies while also deleting negative customer reviews of Xpress Movers, a moving company owned or operated by the defendants. In essence, the defendants were promoting a company they operated while concurrently claiming that a website they also operated was neutral and unbiased in its management of the user-generated reviews. The plaintiffs brought various claims including false advertising and unfair competition (federal and state) and tortious interference, among others.

The defendants moved to dismiss these four named counts based on their purported immunity under the CDA, 47 U.S.C. ยง 230(c)(1). Specifically, this provision states that a "provider or user of an interactive computer services" shall not be treated as "a publisher or speaker of any information provided by another information content provider." "Information content provider" has been used to refer to user-generated content. Avoidance of "publisher or speaker" liability is tantamount to immunization from state law claims against the publisher or speaker. See Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (enumerating the governing test for CDA immunity claims).

After noting that there is no question that the defendants provided an "interactive computer service" under the statute, the court held that Xpress Movers, and its related entities and individual defendants, could not avail itself of the immunity. The plaintiffs argued that their claims were not based on information provided by "another information content provider," which in this instance was the user-generated reviews, but rather that defendants were the "developers" of the alleged misinformation. The court agreed that by deleting positive reviews of others and negative reviews of their company, the misleading manner in which the information was presented on the website constituted the conduct that was the reason the defendants should lose CDA immunity. Couple the deletion of negative reviews of Xpress Movers and the deletion of positive reviews of the plaintiffs with the representations of neutrality on the defendant's website, and the court thus found misleading conduct sufficient to take away the immunity.

Additionally, the court did not find that the defendants were the "publisher or speaker" of the user reviews at issue. Rather, it stated that the defendants misrepresented the veracity and nature of such user reviews. Specifically, the website of the defendants assured users that it offered "accurate" data, that it is "serious about reviews [sic] quality," and that readers "see the most accurate and up to date rating information" upon which to base a decision. The decision of the defendants to delete positive reviews of competitors and negative reviews of their own company belied the assertions of accuracy and impartiality proffered on the website. As a result, the court found that the misrepresentations in the comments on the website excised the defendants from the aegis of the CDA immunity.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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