Like other Better Business Bureau affiliates around the country, the BBB of Greater Maryland publishes online profiles of business and provides a forum for consumers to comment on and complain about businesses. Is the BBB responsible for false statements that consumers make in those reviews, even if the BBB investigates the complaints and knows that they are false? That was the issue in a recent New York lawsuit.
Online clothing retailer Amuze was not happy about some of the comments that consumers had posted online about the company, including allegations that Amuze failed to provide promised refunds and charged a return shipping fee and only gave credit for returns of defective merchandise, as well as that the company is "guilty of unethical business practices."
Amuze sued the BBB, alleging claims for defamation, libel per se, and intentional infliction of emotional distress under New York law. In its lawsuit, Amuze asserted that the BBB should be liable for the false statements because it "knew or should have known that these statements were false, inaccurate, and/or erroneous." The BBB moved to dismiss on various grounds, including because Amuze's claims are barred under Section 230 of the Communications Decency Act. The court agreed and dismissed the case. Here's why.
Section 230 of the CDA provides (with certain exceptions not relevant here) that "no provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, the law shields websites from defamation-type claims where the website hosts reviews, but didn't contribute to the development of the reviews.
Amuze argued that the BBB shouldn't be treated like typical interactive computer services, because the BBB doesn't simply provide a forum for reviews to be published. Amuze claimed that the BBB should be treated differently because the BBB holds itself out as an entity that investigates consumer complaints and operates a sort of ad hoc dispute resolution mechanism. Amuze further alleged that the BBB previews or edits user posts, has a formal complaint process where the BBB invites businesses to respond to the complaints, and grades are given to the company based on the results of its investigation.
The court held that the BBB's investigation process didn't impact its Section 230 immunity. The court explained, "The most basic problem with plaintiff's argument is that it has not alleged that defendants altered or in any way included its own views when displaying the consumer complaints. A defendant will not be considered to have developed third party content unless the defendant directly and materially contributed to what made the content itself unlawful."
This decision from a New York State Supreme Court isn't breaking any new ground. It's just a confirmation of well-established precedent at this point (at least until we hear from the U.S. Supreme Court).
The decision does emphasize, however, that even if a website that hosts consumer reviews takes an active role in looking into the reviews and responding to them, it doesn't impact the site's liability under Section 230.
It's also an important reminder that the immunity under Section 230 is dependent on the site not contributing to the content of the review. When inviting consumers to post reviews, then, it's important to keep in mind that the invitation should be as neutral as possible. If you start asking consumers to post certain types of content, depending on what you ask, this could potentially be seen as participation by the site in the creation of the review.
Amuze v. Better Business Bureau, 2023 WL 2366823 (Sup. Ct. New York Co. 2023).
"The most basic problem with plaintiff's argument is that it has not alleged that defendants altered or in any way included its own views when displaying the consumer complaints"