The Ripoff Road
When I was growing up, I remember hearing about the dangers lurking on Interstate 75, which runs from Michigan to Florida. It used to be called “Ripoff Road” because of all the sleazy service stations that preyed on tourists heading south.
While checking under the hood, a pump jockey would put Alka Seltzer tablets in the battery, and wait for the explosion so he could sell the motorist a new battery. Consumer protection investigators caught I-75 mechanics spraying barbecue sauce on car alternators and using surgical instruments to slash tires, all so they could turn around and sell new parts and services to the drivers whose cars they’d sabotaged.
I started thinking about businesses that profit out of problems that they themselves have created as I was preparing to write about Ripoff Report.
Ripoff Report is famous, or infamous, for running reviews on products and services. The reviews are invariably negative and they rank very high on Google searches. But Ripoff Report doesn’t fact check a bad review before publishing them. “Who are we to say what is true or not?,” Ripoff Report says on its site. “We are not a judge and jury.” And after publication, Ripoff Report stubbornly digs in its heels about editing or deleting reviews if they are wrong. While the target of a false or negative review does have a couple of options for responding that don’t involve contracting services from Ripoff Report, these alternatives tend to be ineffective.
Of course, Ripoff Report tries to cast its activities in a spunky, populist light. Ripoff Report says it’s all for the average guy and gal against the businesses who would do him or her wrong. The site is peppered with fiery slogans:
“By consumers, for consumers.”
“Don’t let them get away with it!.“
“Let the truth be known!”
That last slogan is rather ironic, because Ripoff Report acknowledges it lacks “the internal resources” to ensure that the posts on the site are truthful. A good number of the posts aren’t accurate and they cause real grief for victims, often small businesses that aren’t well equipped to fight back.
A 2013 story in Forbes magazine did an excellent job of tracking down business owners and others who say they were unfairly maligned by Ripoff Report reviews and who were suffering dire consequences. There’s a record company that witnessed several defections by artists after a band that was unhappy with a contract attacked it on Ripoff Report; an interior designer who said a bad Ripoff Report review caused her business to collapse and who was forced to start renting out rooms to make ends meet; and a software company which saw revenues sliced by two-thirds after being run through the Ripoff Report wringer.
Ripoff Report even allows highly personal attacks like the one on the woman named Robin who was accused of passing AIDS onto four men. Her picture was posted alongside the slur.
To really counter the damage done by Ripoff Report, you have to pay Ripoff Report to enter into the “reputation management” program it offers. Either that, or hire a lawyer to try to get a court takedown order—which Ripoff Report may or may not recognize.
Granted, the analogy between Ripoff Road and Ripoff Report isn’t perfect. After all, Ripoff Report doesn’t actually write the negative reviews. The site just publishes them. But Ripoff Report profits handsomely by playing the role of enabler, taking advantage of internet law that doesn’t hold websites accountable for what they publish, the way that say, newspapers, can be called to account with libel suits.
In the post that follows, I’ll delve into how Ripoff Report operates, the options the site offers those targeted by negative reviews and what you should do if you wind up getting raked over the coals on Ripoff Report. And, at the end of this article, I go over a tactic that is the real legal solution to actually getting Ripoff Reports completely and fully removed from the Internet, not just search results.
My main advice, however, is to plan your strategy carefully and consult qualified legal counsel, and if possible, businesses that have gone through the same situation. While Ripoff Report offers the right of rebuttal to reviewed businesses free of charge, that’s an option that may do more harm than good, in most cases.
America’s Worst Websites
A few years ago, when Fox’s O’Reilly Factor was the most popular news show on cable TV, it ran a segment on “The Worst Websites in America.” The very first website nominated by a tech journalist on the Fox panel was Rip Off Report. “Anybody can smear a company,” O’Reilly said, summing things up, after the expert had finished her presentation. “This website doesn’t check out whether the smear’s legitimate or not. They post the smear. If the company wants the smear off, they gotta’ pony up. It’s extortion.”
Bill may be oversimplifying Ripoff Report’s practices a little, but he was pretty close to being on target.
Ed Magedson spoke to this blog by phone and derided most media portrayals of him and Ripoff Report as “fake news.” He says profits aren’t his fundamental motivation. Magedson says Ripoff Reports spends more money and time vetting reviews than it is given credit for and his staunch refusal to take down posts has cost him money-making opportunities. “Ripoff Report is not getting rich,” he says. “No way Jose is Ripoff Report getting rich. I’m not getting money from it. I had money before this. I was retired. I don’t need to be doing this.” (See other excerpts from the interview elsewhere in this blog.)
But Courts have also been sharply critical of Ripoff Report, which is owned by Tempe, Arizona-based Xcentric Ventures, LLC, even when ruling in its favor. In 2011, Florida’s Third District Court of Appeals reviewed a case where Ripoff Report printed false and defamatory information about the operator of a drug treatment center, saying the owner was a convicted felon and that the employees illegally distribute medication. The court issued a scathing evaluation of Ripoff Report’s methodology.
“The business practices of Xcentric, as presented by the evidence before this Court, are appalling,” the opinion said. “Xcentric appears to pride itself on having created a forum for defamation. No checks are in place to ensure that only reliable information is publicized.
Xcentric retains no general counsel to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct. Even when, as here, a user regrets what she has posted and takes every effort to retract it, Xcentric refuses to allow it.”
Nevertheless, the court was compelled to rule in Ripoff Report’s favor because the law was on its side. “However much as this Court may disapprove of business practices like those embraced by Xcentric, the law on this issue is clear,” the opinion stated. “Xcentric enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.”
The law that applies to Ripoff Report is Section 230 of the Communications Decency Act. The law states that sites like Ripoff Report aren’t publishers, like newspapers, which could be sued for libel for printing falsehoods. Rather, the law treats Ripoff Report and sites as carriers, like Google or Yahoo, which aren’t legally liable for what outsiders post on the site. As long as Ripoff Report itself doesn’t edit or embellish a post, it cannot be sued for defamation.
For an easy-to-understand explanation of Section 230 and why it matters, check out our video below.
Video: What is Section 230 of the Communications Decency Act?
The Mystery Man Behind Ripoff Report
Ed Magedson has become an almost mythic figure due to his zeal in keeping his whereabouts a mystery. One businessman who had been attacked on Ripoff Report got frustrated with not being able to locate Magedson to serve him with a lawsuit. So the businessman offered a $20,000 reward for information on Magedson’s whereabouts.
Forbes’ enterprising Adam Tanner tracked him down in 2013 and provided a fascinating portrait of an online rabble-rouser. I’ll quote a passage of his report at length:
“Ed Magedson lives at a secret location in Arizona, convinced that some people not only fantasize about killing him but would actually do so if they got the chance. His home – he has moved repeatedly in recent years — sits fortified behind fences with cameras watching for intruders. He makes special arrangements to dispose of trash lest enemies go through his detritus. He worries that a stray hair could leave behind DNA clues. He records his phone conversations, and if he meets a new person, sometimes hires bodyguards to sit nearby.
Magedson agrees to meet in the flesh at a temporary office in the Phoenix area — provided I do not reveal his exact whereabouts. He wears a gray T shirt and track pants over his corpulent frame, several day old stubble, a Benjamin Franklin look with balding head and flowing locks to his shoulders, and lightly tinted frameless glasses. “I wouldn’t be doing a good job if I didn’t have people who hated me,” he says. “Nobody gets onto to Ripoff Report because they didn’t do something to somebody.”
“Is there anyone who is getting stuff written about them that is false? Sure,” he continues. But “ninety nine percent of the time there is some truth in it.” His uncompromising stance as the head of his company called Xcentric Ventures has provoked a stream of angry letters and lawsuits. “Usually a day or week doesn’t go by that I don’t get a threat of a lawsuit,” he says with pride. He has paid more than $5 million in legal bills over the years, adding that Ripoff Report has been sued more than 70 times but never lost a U.S. case or “paid one dime to anyone ever.” His litigation attorney David Gingras says they did lose a 2003 case in the Caribbean island nation of St. Kitts and Nevis. “
Magedson may be eccentric, as the corporate name implies, but he’s laughing all the way to the bank:
“The site generates several million dollars of revenue a year, the company says. Here’s how it makes its money. Criticized firms can pay a flat fee based on the volume of complaints received about them. It can be as low as $5,500 but some firms have paid more than $100,000. The money pays for inspectors to verify that complaints have been resolved, and then the site injects a new headline and lengthy text above the original complaint. Magedson says he gets about 40 new customers every month. If complaints return, the site strips off the positive headline and copy. “
Our Interview with Ed Magedson, Ripoff Report’s Owner
Ripoff Report is for Sale
The news may trigger spontaneous celebrations among thousands of businesses all over America: Ed Magedson, who founded the consumer review website Ripoff Report and built it into one of the most controversial sites on the web, says he’s interested in selling the business, or at least reducing his stake in it. “I don’t hide the fact I’m looking to sell Ripoff Report, most of it,” he says in an interview with Minc Law blog. Magedson says he wants to “stay with it” in some capacity, even while allowing that the growth of Ripoff Report has made it a chore to manage. “I was retired when I started this 20 years ago,” he says. For now, Magedson is still relishing his role as online consumer gadfly. He spoke to us about Ripoff Report and the way the internet has changed relationships between businesses and their customers.
On his philosophy of how the internet has changed life for service oriented businesses.
“It’s no longer just buyer beware. It’s also seller beware in this 21st Century. You do things wrong, you do things badly, I don’t care what you do—whether you’re a massage therapist, a solar company, a construction company, an auto dealer—you do the customer wrong, you’re going to get written about . . . . . We’re all going to get reviewed. We’re all going to get blogged.”
On his disdain for the companies who take him to court.
“These are companies who really do bad things. They’re bad companies. They’re people who are going to f**k you, your family members and anyone else who’s out there. Most companies who’ve sued have either been shut down by some government agency, or are in prison or are being sued themselves for the very things that people wrote about on Ripoff Report. The people who scream the loudest, look into them and who they are and what they do. Read the Ripoff Reports. . . . There’s never been a company that has sued us that was innocent of what was written about them. “
On why Ripoff Report publishes posts about sexual encounters that allegedly went awry.
“Nobody gets a ripoff report for nothing . . They deserved to be on Ripoff Report because there’s some sort of a ripoff. Even when it’s an ex-lover doing it. You know there are stories about people, guys and girls, that go out on dates with people, go to bars and they go to people’s homes and and rip ‘em off. And they talk about that they’re spreading herpes or some other venereal disease. I mean to me, that’s a ripoff. Is it true? I’m going to tell you we’ve checked into so many of those over the years. And I’m going to say almost every time it was able to be proven, because the person didn’t want to go for the test or . . . go to this clinic and give permission for the clinic to send us the results that you don’t (have) whatever. There was never a time that I could ever remember in all these years that it was false.”
On criticisms of Ripoff Report for not doing more to filter out false reviews.
“I know I have people who criticize and think whatever. Maybe it’s my fault because I haven’t gotten the message out correctly. But Ripoff Report doesn’t remove their reports. But we do investigate. Like let’s say (the report) says they’re a criminal, and they have no criminal history. We may redact those words. Let’s say (the report says) they’re a sex pervert. Because people like to embellish when they write these stories to pay them back. Ok I get it. I understand it. So when this happens and we see that happen, if you’re in the program we redact those things. And . . . . even with people who aren’t in the program we redact a lot of things that we look into and they’re not paying us a penny for anything. But those things aren’t really commonly said and of course certain media and certain people aren’t going to want to express it.”
On his view of Ripoff Report’s role serving as an intermediary between consumers and businesses.
“The reason why a business goes on our program is because we become their first line of defense on the internet. Why? Ripoff Report is very strict both with the consumer and the business. If you were to question any of our businesses we’re really very strict. We’re not any more for the business than we are for the consumer. We’re for what’s right. Because we know that both consumers and businesses know how to lie. We know they both know how to be crooks, to be dishonest.”
Not Responsible For Accuracy
Ripoff Report places the onus for the accuracy of the content is put on the reviewers. The site warns posters that “you should make sure that everything you type is appropriate, accurate and complete before you hit the submit button. Your failure to do that is NOT our fault. “
As to its own responsibility for posting erroneous material, well, Ripoff Report responds with a figurative shrug of the shoulders. “We are not in a position to judge the credibility and truthfulness of the millions of Reports and related comments posted on our site. ….. Taking sides is not our role.” Ripoff Report notes that Facebook also doesn’t fact check the accuracy of everything its user’s post, nor does Twitter or Amazon.
Ripoff Report makes a public service argument for what it does, saying “the reports may help warn other individual/consumers about prior bad acts, scams, rip-offs they have experienced.”
The site adds: “We feel that true and accurate Reports are socially useful. This is especially true when they are outing some unscrupulous business!”
Ripoff Report uses the freedom of speech argument as justification for its staunch “no removal” policy. “We don’t want consumers being bullied into taking a Report or subsequent posting down,” Ripoff Report says. The alternative to its almost anything goes policy, Ripoff Report says, is “rampant censorship.”
Ripoff Report won’t remove a post even in cases where the author wants to take it down. Other sites, like Yelp, allow reviewers to delete complaints they’ve made after they’ve received satisfaction from the business targeted by the complaint. But Ripoff Report says that once a reviewer hits the send button, the complaint belongs to Magedson and his company, not the author.
To businesses harmed by what it publishes, Ripoff Report tries to paint itself as just an innocent bystander—rather than the party instigating the conflict by soliciting and posting unfiltered critiques.
“We understand that you are probably upset (maybe justifiably very upset) but the first thing you need to realize is that we here at Ripoff Report did not write the content…so being angry at us is placing blame and directing your frustration in the wrong direction” Ripoff Report says. “We are seriously just the middle man who in all likelihood have no idea who any of the parties are or what the situation is even about. “
Ripoff Report Lawsuits, Reputation Management Services, & How to Really Remove Ripoff Reports, Permanently
For victims posted on Ripoff Report there are many different solutions and advice offered. It can be daunting to know who to trust and what is actually worth paying for.
Below I go through options offered by Ripoff Report to mitigate the damage done by its website. At the end, I discuss what I believe is a legal road map and solution to permanently remove ripoff reports from the Internet for good (not just from search results).
Ripoff Report does offer reviewed businesses certain, limited options for obtaining relief that doesn’t cost anything. One option is filing a rebuttal. All an individual or business must do is click on “Respond to this Report” button on the same page as the report.
The process is relatively easy, but it’s highly debatable whether in a business’s interest to respond. It’s a judgment call, but I generally feel it’s better to hold fire. By responding, a business is giving the original complaint more relevance in Google search results. That is analogous to cutting one’s own throat. The response could also prompt the post’s author to make additional negative comments. That could trigger a vicious cycle of tit for tat responses that would only call more attention to the bad review.
Moreover, other customers who see the response may smell blood in the water and make their own critiques. “If Joe Blow got a refund after raising a stink on Ripoff Report,” a customer might say, “well maybe I can too.”
Finally, responses are permanent. A business must be extremely careful about how it answers a complaint. If it messes up, the response lives on for all time.
I would only recommend making a response for brands and companies that service incredibly high volumes, and, which as a consequence, receive a higher volume of complaints. For such businesses, a “respond always” policy makes more sense.
Ripoff Report also allows the author of a negative report to add an update averring that the problem that had prompted the complaint was resolved. But as a practical matter, that feature is of limited value. Most people who make complaints about a business aren’t inclined to go to the trouble of writing an update afterward. It just isn’t human nature. And again, additional attention to the original complaint may just be adding fuel to the fire.
Ripoff Report also aggressively advertises paid options for responding to negative reports, casting itself as the protector of businesses’ reputation. “In less than five minutes one anonymous troublemaker could ruin your online reputation forever, causing you to lose existing clients potential future customers and most importantly, money,” a video on the site says. Of course, no mention is made of the fact that Ripoff Report itself is the one handing these anonymous troublemakers a megaphone.
Bloomberg summarized Ripoff Report’s business model succinctly in a headline: “How to make money rebuilding reputations. Have them destroyed first.”
Paid “Reputation Management” Services
One service is geared toward businesses that haven’t yet received negative reviews but want to insulate themselves from potential problems, just in case. Through this “Guardian Program,” Ripoff Report sends a team of investigators to the site of the business to conduct interviews and take photos.
The main benefit a company acquires by paying for the Guardian Program is time to resolve a complaint before it is posted online. Companies get 14 days to work things out with the aggrieved client. If the business can satisfy the client in that period, the complaint will never be posted.
Of course, giving this grace period to companies which are willing to shell out money flies in the face Ripoff Report’s free speech justification for not allow takedowns or edits. It may not be logical or fair, but it is lucrative for Ripoff Report.
For companies that have already been hit by negative reviews, Ripoff Report offers another option, which it calls the “Corporate Advocacy Program,” or CAP. It also involves an inspection visit by Ripoff Report and a 14 day grace period for resolving fresh complaints. If it is satisfied with its investigation of the company, Ripoff Report also will publish a more positive review that will appear above any negative ones on Google searches.
There’s a base price for the program and an additional fee for every negative report the company has on its record, Magedson told us. There’s also a monthly monitoring fee.
Magedson says the fee is justified because monitoring the companies is a labor intensive process that entails handling customer phone calls and emails. In my discussions with Ripoff Report over the years, it is my understanding that the price initial flat fee and ongoing monthly monitoring fees are based heavily on the number of reports that are posted on the website about a company (or individual) and some subjective determinations by Ed about the applicant (and possibly how well funded they might be). The fee is negotiable and can be in the range of a $500-$1250 to start for 1-2 ripoff reports. As I mentioned before, it’s highly subjective determination and these prices GREATLY increase based on the number of pre-existing reports. Monthly fees can start near $100-200 and our less negotiable, but they also increase very quickly and can cost tens of thousands of dollars for major businesses and corporations.
Overall, for some businesses I highly recommend they participate in the CAP program because it usually prevents more posts from being published. But, it certainly is not for everyone.
Some Loosening of Takedown Policy
Over the past few years, Ripoff Report has softened its resistance to correcting false posts, but only grudgingly so. As I have previously reported, Ripoff Report will eliminate statements that a court has determined to be false and defamatory, though it won’t take down the entire post. It will also add updates stating that the post was deemed false by a court and will put a copy of the court order on the post.
Ripoff Report is picky about the kind of court orders it will accept, however. If the plaintiff seeking a post’s removal won by default judgment, one in which the defendant didn’t show up for trial, Ripoff Report won’t honor the court order. Ripoff Report says there have been cases in which plaintiffs have obtained take down fraudulently by filing suit against defendants who don’t exist.
Ripoff Report also won’t recognized stipulated agreements to take down reviews. Those are accords between the author of the post and the subject that have been negotiated under the auspice of the court. In defending the policy, Ripoff Report again cites concerns about free speech and intimidation of those who filed the posts.
Additionally, over the years Ripoff Report has also developed a policy that it will fully redact Ripoff Reports (and the names of individuals and businesses in the reports) that appear to be the result of extreme online harassment and stalking. Their policy of when they choose to redact is subjective though and the determination is made on a case by case basis. Ordinary one off posts involving defamation usually doesn’t qualify for this type of relief unless there are other offline facts and circumstances.
Generally, this type of relief offered by Ripoff Report is reserved for victims of false reports that have been subjected to a repeated pattern of harassment and bullying. Although the policy does have limits, the site should get credit and kudos for taking these steps to eliminate the most malicious and egregious cases of online defamation and cyber harassment. This is obviously a small step in the right direction.
Getting Around Google De-Indexation?
If Ripoff Report doesn’t take a post off its website, companies and individuals still have options. Google will de-index web pages, provided a valid court order is presented. What this means is that when someone does a Google search, the web page will never show up on Google. This process typically makes it as good as gone.
But lately, questions have been raised about whether Ripoff Report is purposely subverting Google’s de-indexation effort. Writer Chris Silver Smith has noted subtle changes in the URLs of pages that Google has removed from indexes with a court order. “Ripoff Report has apparently figured out that by changing some characters in de-indexed page URLs, they can magically restore their pages to appear in the search results once more,” he wrote. “I’ve now heard reports from a number of attorneys whose dismayed clients have contacted them when previously de-indexed Ripoff Report pages abruptly began appearing and ranking prominently in Google once more.”
Smith asked a Ripoff Report lawyer whether the site was altering URLs. She didn’t answer the question directly but instead complained about court takedown orders that had been obtained under what Ripoff Report considers dubious circumstance. Smith wrote that the doubts about the URLs ran counter to some positive moves Ripoff Report had been making to become “a little less icky” by trying to crack down on bullying and stalking on its site.
How to Remove Ripoff Reports: Hassell v. Bird
Those seeking legal redress from Ripoff Report may have gotten a glimmer of hope from a recent court case in California, Hassell v. Bird. There, an attorney named Hassell sued a former client named Bird over a defamatory Yelp review.
The Court ruled that the review Bird posted was false and defamatory. Bird was ordered to remove it. However, Bird did not comply. So Hassell then got the Court to order Yelp to take the defamatory review down, even though Yelp wasn’t a party to the original lawsuit. The court granted Hassell’s request.
When Yelp was confronted with the Court’s order it objected and filed a motion to overturn the Order. Yelp lost. Yelp appealed the decision and lost again. Now the case is currently being appealed to the Supreme Court of California. Yelp is being backed and supported by dozens of Internet service providers and First Amendment activists contesting the decision.
Yelp believes the order to remove the defamatory review was wrong because it was never a party in Hassell’s original suit and wasn’t afforded notice and opportunity to be heard when the judge in the case issued the order for them to remove the review. Yelp also argues that the order issued against them abridges its rights under Section 230 of the Communications Decency Act (the “CDA”) and the First Amendment.
The outcome is being closely watched in Internet law circles. If the outcome stands, it would serve as a clear legal roadmap to use court orders to remove defamatory content from the Internet entirely, that is located on almost any U.S. based website.
As noted in my prior article, I have reservations about the verdict that was obtained in the Hassell case. I tend to agree with the argument that Yelp was probably not given valid notice and due process under the law (although Yelp later did appear in Court before enforcement occurred, objected, were heard, and were denied, so that may be a moot point from the Plaintiff’s perspective).
However, researching the case more has given me the opportunity to explore the validity of legal arguments of adding websites, like Ripoff Report and Yelp (and search engines) to lawsuits as nonparties to get Court orders to have content removed from the Internet.
What are Nonparty Relief Defendants?
A nonparty defendant, or nominal defendant, is a party included in a lawsuit because of a connection or interest in the matter being litigated. Generally, the party is given notice of the litigation in order for the Court to decide all issues and make a proper judgment and accord final relief appropriately.
However, by definition, a nonparty defendant has no responsibility, no fault, no liability, and no right to recovery. Nonparties are also referred to in the law as “nominal parties,” “nominal defendants,” and “relief defendants.”
Nonparties are added to lawsuits in many different circumstances. Especially in situations where injunctive relief is issued by a court when the nonparty is acting in concert with the Defendant or is an agent or actor of the Defendant being used to facilitate, circumvent, or act on behalf of the Defendant. Injunctions against nonparties are valid so long as they meet proper legal standards and offer that party the opportunity to show up to court and be heard first before an order is issued against them. See FRCP 65(d)(A)(2).
The big question though is whether an injunction issued against a nonparty is contrary to and prohibited by Section 230 of the Communications Decency Act. Normally, any claim, including purely injunctive relief claims (non-monetary claims), are strictly prohibited against websites like Yelp and Ripoff Report if they are named as a regular party.
Nonparty Injunctions and the CDA
Based on my research, the question of whether nonparty injunctions are prohibited by the Communications Decency Act appears to be a largely un-litigated legal issue to date.
Every case that I’ve come across in my research seems to focus on facts and issues that involve situations where a nonparty was not given valid notice to contest an injunction (Hassell v. Bird), or facts regarding the non-parties participation in the alleged torts were not pled in the complaint or injunctive relief was sought against a website, like Ripoff Report, directly as a party, not a nonparty to the case.
To my knowledge, there is no case that I’m aware of to date where the issue of the Communications Decency Act has been ruled on where a nonparty, from the inception of a case, is properly added as a nonparty, appropriate facts are pled in the complaint to allow for a nonparty injunction because there is evidence that party is acting as the Defendants agent or in concert with the Defendant, and the website (or search engine) is given valid and actual notice to respond and contest a judgment before it was issued.
Some free speech activists will disagree with my assertions above and will inevitably argue that the Communications Decency Act absolutely applies in these situations, just as it would apply in the case of claims and injunctions asserted directly against websites as parties.
This argument is usually premised on the rationale that allowing for an injunction to be ordered in these situations is essentially still treating websites as publishers/authors of content, which is prohibited under the CDA.
Additionally, there is the argument that requiring websites to remove content in these situations would violate the First Amendment rights of these sites to act as editors and curate and select the content it chooses to publish. There may also be additional arguments that in certain situations there may still be due process concerns and this may be burdensome to CDA protected websites as well.
However, I completely disagree with these contentions.
For starters, there’s no direct case law that provides for a blanket rule that nonparty injunctions are prohibited by the CDA. And, to my knowledge, there are no cases that address the particular facts and circumstances I laid out above directly.
Second, I strongly disagree with the notion that there is a First Amendment right to be a content curator that somehow includes the right to publish defamation. If something is defamatory, it contravenes the First Amendment. Period. The fact that a content curator continues to evade direct liability is because of the Communications Decency Act, not because of a right to curate libel. This argument sounds like nothing but nonsense to me.
Third, if parties are properly noticed from the inception of a lawsuit, there are no due process concerns, even in the event that a Defendant defaults or a stipulated judgment are entered. The nonparty has every opportunity and right to assert objections as they deem appropriate. There is also nothing that burdensome about reviewing and removing access to content, websites do this every day as a matter of course. Google does this in Europe now with the Right to be Forgotten.
Most significantly, the strongest argument is that the black and white text of the CDA statute stands directly in opposition to these arguments. For example, Section 230(c), provides as follows:
(c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
No provider or user of an interactive computer service shall be held liable on account of—
any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
Further, Section 230 (d)(3) provides:
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
What these two sections have been found to mean is that you can’t hold websites liable and sue them directly for claims that arise from someone else’s content that is posted on its site.
This includes equitable relief and injunctions (i.e. removal orders). Recall that Ripoff Report, for example generally doesn’t have liability in lawsuits against it because it contends that it is merely just a discussion forum and a means to facilitate the content of others.
Well, if Ripoff Report is not a party to a lawsuit, they are a “nonparty,” an injunction issued against the site as a nonparty sidesteps the issues mentioned above. By definition, a “nonparty” to a lawsuit has no legal “claims” asserted against it. It has no “liability.” Heck, a nonparty is not even a PARTY to a case.
A nonparty to a lawsuit being ordered to remove content that isn’t theirs isn’t being blamed or sued for creating it and isn’t being treated in the capacity of a publisher or speaker. In fact, the exact opposite is being alleged. The website is treated literally as they are and were meant to be treated under the CDA, as a third party host, message board, or distributor of someone else’s work.
A nonparty injunction, therefore, does not, by definition, fall in the gambit of things that are prohibited by the CDA.
Therefore, when I read the CDA statute, I am of the opinion that the Communications Decency Act does NOT apply to nonparties. It is permitted if done correctly.
Directly Analogous NonParty Relief Cases
Ample case law is available that presents direct analogous authority to support the reasoning behind my argument above. This is because there are simply situations in the law where it is entirely appropriate and necessary for individuals and businesses who are not parties to lawsuits and not technically liable for the bad acts of others to also be affected by and have to abide by injunctions and court orders. If this wasn’t allowed, defendants could completely circumvent the whole purpose of getting a judgment in the first place and the court ordered relief would be rendered meaningless and superfluous.
Let’s take a look at some examples:
Asset Freeze Orders on Financial Institutions
This example was brought to my attention by the domestic relations family law litigators at my firm. In a majority of cases that they handle when parties go and file divorce proceedings it is standard practice for them to name banks and other financial institutions as non-parties in the complaints and to obtain injunctions against these nonparties to freeze assets that are a part of the marital estate of the parties pending dissolution of the marriage.
It is my understanding that emergency injunctions and freeze orders are routinely granted. The banks are subject to injunctions as nonparties because they control and have possession of the disputed property. Like a typical CDA case involving a defamatory post on a website like Ripoff Report, the website is in possession and control of a disputed piece of intangible property, an original work of authorship created and published by the Defendant. Once it is determined by the Court how that piece of property should be disposed of, the website should be made to comply, just like in the case of asset freeze orders on financial institutions.
Copyright Impoundment Proceedings
Under copyright law, it is possible to obtain orders of impoundment to collect and destroy property being held by individuals and companies that are distributing infringing copyrighted material, even when these parties are not parties to a case and not liable for any copyright infringement.
Again, the analogy is clear. Some store or third party distributor, without knowledge, is given counterfeit goods to sell or ship. If the Courts did not allow for intervention and this property to be seized and destroyed, even though the party holding the property was not to blame and will take a loss from the confiscation, it would not give adequate and complete relief to parties looking to stop distribution and sale of illegal goods and harm to its copyrights.
Relief Defendants, Parties who Receive Illegal Funds Derived from Ponzi Schemes or Insider Trading. (A/K/A Constructive Trusts)
If a person receives money innocently form some sort of investment, or even as a gift, and it turns out later that the money they received was the proceeds of a crime or other illegal acts, courts allow recovery of the stolen property or ill gotten gains from the party that received them.
This is the case even though the party that received the money (or property) obtained it under lawful pretenses with no knowledge of its criminal nature, and are explicitly have no legal liability from receiving the funds. See SEC v. Cavanagh, 155 F.3d 129, 136 (2d Cir. 1998); SEC v. George, 426 F.3d 786 (6th Cir. 2005).
This concept is also commonly referred to as or justified under the common law theory of something called a constructive trust or unjust enrichment. Courts impose a constructive trust where a third party is unjustly enriched as a result of another innocent party being wrongfully deprived of its rights due to property that they should not possess. This is the case even absent wrongdoing by the party unjustly enriched. Equity allows the harmed party to take back the property from an innocent third party in order to protect the equitable rights of those who have suffered the wrong.
The elements for a relief party claim or constructive trust request seem very analogous to me when compared to a request to have defamatory content ordered removed from a nonparty website. The website is in possession of an illegal intangible digital piece of property that violates the Consitution. Although the website came in possession of the property innocently and has no liability, it would be completely unjust an inequitable for the website in question to be allowed to keep the defamatory content published indefinitely.
The nonparty relief action would explicitly not subject the website to any claim or liability by definition and no cause of action is asserted against the site.
What’s even more appropriate about this analogy compared to some others mentioned above is that is that the nonparty website like Ripoff Report in these types of circumstance is literally PROFITING from the illegal property it possesses. Reviews are intangible pieces of personal property that have great value.
Actual Precedent Exists Where Nonparty Web Service Companies Have Been Enjoined Regarding Content Removal
In Amaretto Ranch Breedables v. Ozimals, Inc., the Court issued a restraining order against a nonparty company called Linden Research hosting a virtual market connected to a game called “Second Life.”
Linden Research had received a DMCA Takedown Notice by one of its marketplace vendors to remove another competing vendors product from the virtual market. The second vendor then sought an injunction to stop Linden Research from complying with the first vendor’s Takedown Notice and to prevent them from removing its content/products from its “virtual market.”
Linden Research was not a party to the lawsuit and was not directly accused of any wrongdoing. If the CDA applied, then this would have been forbidden under the Act. However, the Court ultimately granted the injunction request and ordered Linden Research to refrain from taking down or removing the content at issue.
Now, to be clear, this isn’t a case where a court ordered content removal. The opposite occurred. The party was suing because of removal request so content wouldn’t be removed, to keep content published.
However, the case is directly on point because the Communications Decency Act prohibits any claim against a website’s regarding its decisions to remove or not remove a particular item published on its website.
The protections of the CDA cuts both ways. Claims against websites are prohibited for any actions they take to remove content it thinks is bad or keep its content published. See above “No provider or user of an interactive computer service shall be held liable on account of …any action voluntarily taken in good faith to restrict access to or availability of material… [or] any action taken to enable or make available to information content providers.”
Although in this circumstance it was an emergency temporary restraining order situation and the issue of whether this was contrary to the Communications Decency Act was not raised, clearly, none of the parties or the court raised it or thought it was a concern, or appealed that part of the ruling on those grounds. It is a viable real example of actual precedent supporting the legal argument I am offering.
Conclusion (Should CDA Protected Websites Even Care?)
The above are just handful of examples, among many others that are analogous to the relief and legal arguments I’m suggesting. These are far from the only examples out there.
I am currently involved in cases where we are pursuing these types of arguments. If we win and relief is granted, it has the potential to create new, groundbreaking law, that will increase options for relief for victims of websites like Ripoff Report and search engines like Google.
What I have found to date, and should honestly not be that surprising, is that since most websites (and search engines) have policies to remove content that is ruled to be defamatory anyways and there is no liability or claim asserted against them as a nonparty, they have no issue abiding by such a ruling, and do not feel the need appear and contest it.
Obviously, since a website like Ripoff Report profits from people’s inability to remove content, actions like these are direct threats to its business model and they will fight them, regardless of how unreasonable and extortionate their positions are perceived to be.
I am currently advising all my clients (who can stomach the risk) to now add any and all relevant nonparty websites and search engines to all Internet defamation cases that I file. I believe it is the only sure fire way to guarantee relief and there are good faith arguments to do so.
Ultimately, Courts may shake out with different rulings on these issues as they are truly unligated to date. Therefore, it’s my opinion that it’s best that as many lawsuits as possible plead these types of relief and claims regarding nonparties so as much precedent can be created as possible to support this type of relief.
If you are interested or have questions or are an attorney looking for an assistance with pursuing such a claim, contact Minc Law today.
Work with an Internet Defamation Removal Attorney
If you or your business is being defamed online on RipoffReport.com or another website like it and have questions or would like assistance in obtaining court orders and relief like those discussed above, the Internet attorneys at Minc Law can help assist you in evaluating your case and obtaining a court order to get the content permanently removed.
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