The Communications Decency Act, 47 U.S.C. § 230 (the “CDA”), is considered by many to be a law that is a “linchpin” of the Internet. Simply stated, it is responsible for allowing the Internet to operate how it does today.
Under the CDA, popular websites such as Facebook, LinkedIn, Twitter, Ripoff Report, Yelp!, and even Google have immunity from most civil lawsuits and claims arising from publication of third party content. And, under the CDA, websites such as Yelp! have complete discretion to remove, edit, and restrict access to third party content.
Because of the power afforded by the CDA, since the law’s inception, websites across the Internet have been left to their own devices to create policies and make decisions as to when each will voluntarily remove or alter content. It’s no small secret that many sites use this power to profit, and, demand payment in exchange for removing or editing unwanted material.
For example, the website RipoffReport.com has a “Corporate Advocacy Program.” In exchange for payment (and a company’s “commitment to customer satisfaction”), Ripoff Report reviews and updates complaints on its site so they are more favorable to businesses. Once enrolled, the program also allows businesses the opportunity to review and resolve future complaints submitted to the site before they ever get posted. As long as the business keeps making it’s required monthly payments to Ripoff Report, and complies with other aspects of its program, it will be given the chance to resolve complaints and stop content from being posted to RipoffReport.com in the future that is submitted to the site.
Other sites, particularly “cheater sites” (like Cheaterville.com), which primarily host content of individuals outing prior unfaithful romantic partners, allow for removals if an “independent arbitration” service is paid a fee. These same “independent” arbitration services then pay the cheater websites “advertising fees” to be listed on each site as a removal source they work with.
Although the “schemes” and “programs” from site to site vary, the concept is always the same, websites are charging money to remove and/or alter unwanted negative content.
But is this legal?
For businesses and individuals listed on these sites, having to pay money to remove or edit content can feel unfair. In fact, many assert that this type of activity is more than just “unfair,” that it is in fact unlawful, and constitutes extortion. Although there may exist circumstances where this is the case, as the title of this post suggests, a recent ruling by the Ninth Circuit Court of Appeals involving the consumer review website Yelp!, Inc. affirms that most of the time it’s completely legal for a website to demand payment in exchange for removing or altering content.
Levitt v Yelp! Inc.
The case, which was originally filed back in 2010, asserted claims that Yelp! had attempted to extort a group of businesses by trying to unlawfully induce them to buy advertising. The plaintiffs asserted in their Complaint that Yelp representatives had offered to manipulate and even hide negative reviews if a business agreed to buy advertising. The lawsuit also alleged that Yelp had created its own negative reviews of businesses to induce businesses to buy advertising as well.
In its ruling, the 9th Circuit Court of Appeals affirmed a lower court ruling that even if the Plaintiff’s allegations were true, Yelp’s actions did not amount to extortion. The Court found that removing content in exchange for money was not extortion because Yelp has the legal right to post and sequence reviews.
The Court also found that the lawsuit did not state sufficient facts to believe that Yelp had actually created negative reviews of businesses.
Analysis on How Websites Can Demand Money to Remove Negative Content
The ruling by the court in this case was limited, but significant. For starters, the ruling itself was not that surprising. A website demanding money in exchange for removing or editing content will rarely constitute extortion, if ever. Most states and federal legal definitions of extortion require a “threat” to be present. For example, “unless you pay me, I will post negative/defamatory information that will harm you.” That’s a threat.
Here, the content at issue is already published. There is no threat. The websites at issue have a legal right to have the content published and also have the legal right to remove or edit the content at issue and keep it published. Demanding money to engage or not in engage in behavior that one is already legally entitled to engage in is not illegal, and certainly not extortion.
In this respect, the ruling is significant because it can and likely will be used by other websites to defend themselves against extortion accusations in the future (such as those I mention above).
Nonetheless, the ruling was limited in several respects. The Court made clear that it’s holding did not mean that “no cause of action exists” or could ever exist for extortion in this type of circumstance. I.e., there may be facts and circumstances that can constitute a valid claim. Additionally, the Court stopped short of ruling that websites such as Yelp are immune from claims of extortion under the CDA, which was in part what the lower court had relied upon when originally ruling in Yelp’s favor.
The ruling also means that in the future we are likely going to see more and more websites that gather negative content and demand money to remove it. I’m not sure that’s something that most people are going to like, but it doesn’t appear to be something that is going away any time soon. It will be interesting to see if this ruling continues to stand as websites modify and expand their removal policies. Only time will tell.
The landscape for owners of websites and those posted to them can be confusing. If you or your business is being defamed online and a website is demanding payment to remove or edit the content, or, if you are the owner of a site that is interested in setting up a program or policy to remove content from your site, the Internet attorneys at Minc Law can assist. Call Aaron Minc at 216-373-7706 today to discuss your matter. Or e-mail me at [email protected]
Online Extortion: When Do Internet Postings Become Illegal?
Recently CNN released an article questioning if 2016 would be known as the year of online extortion. In their article, CNN highlights some well-known and public online extortion cases. Many of these extortion events involve ransomware, which holds a computer’s files ransom until a person pays for their files to be released. This is a growing problem across the country and something the FBI has estimated has cost its victims $18 million dollars just since April of 2014. People have begun asking if these sorts of programs are legal. The answer is almost certainly no!
What is Online Extortion?
Extortion is the gaining of property or money by almost any kind of force, or threat of violence, property damage, harm to reputation, or by unfavorable government action. Extortion is a crime of varying degrees in every state and there is a federal law pertaining to extortion, which can be found at 18 U.S.C § 872. However, the federal extortion laws generally apply protections both to and against federal employees, whereas the individual states extortion laws will apply to individual citizens.
How is Online Extortion Different from Blackmail?
Blackmail is a common theme in movies particularly ones involving criminals, where usually the “bad guy” threatens to release some damaging picture or document unless the other person pays an exorbitant amount of money. While extortion is the illegal and intentional use of threats to one persons or property, coercion, or fraudulent claims of right of public duty. Blackmail on the other hand is much like in the movies when a person makes a threat to reveal embarrassing, harmful, or shameful information about a victim.
What are the Punishments for Online Extortion?
Each state has its own extortion laws. Therefore it would be impossible to explain and analyze each state’s laws on extortion and provide a summation of the penalties a person might face if they are convicted of extortion. There are penalties that may be imposed if a person is charged and convicted of the federal crime of extortion.
Though states provide a wide range of penalties for extortion, the crime is most often punished as a felony offense. A felony is the most serious category of crime, one that is punishable by at least a year in prison and significant fines. In some states and in some situations, however, the crime may be classified as a misdemeanor, in which case it has lower fines and jail sentences associated with it.
- Fines – A person can be fined if you are convicted of extortion. Fines for extortion can range widely, but they can be as high as $10,000 or more for each count or conviction.
- Restitution – Restitution is another form of penalty that may be given if a person is convicted of extortion. In addition to fines, a person convicted of extortion must often pay restitution to the victim, especially when the victim was deprived of valuable property. Unlike a fine, which is paid to the state, restitution is paid to the victim as compensation for the loss the victim suffered.
- Incarceration. Prison sentences for extortion can be significant. State laws allow for prison sentences of up to 15 years or more for each individual extortion attempt.
- Probation. Courts may also impose probation sentences for an extortion conviction. Courts may be more likely to use a probation sentence when someone has failed at an attempted extortion or the extortion did not otherwise result in any loss of property by the victim. Probation sentences typically last for 12 months or more, may include a fine, and require that the convicted person comply with specific terms imposed by the court, such as keeping a job and not contacting the victim. Failing to comply with probation terms typically results in having to serve a prison sentence
Strategic Internet Defamation Lawyers
If you or your business is a victim of online extortion, it is very important to contact the right authorities and legal counsel. The Internet Defamation Lawyers at Minc Law may be able to protect your from online extortion or blackmail. To schedule a free and confidential Internet defamation removal consultation call Minc Law at (216) 373-7706 or contact us online.