Many hoteliers, restaurateurs, destinations, and other segments of the hospitality, travel, and tourism industries are very upset with electronic service provider sites such as TripAdvisor.com, because they do not meet the “Mother says” test: If you have to say something, make sure it is nice.”
Section 230 Protection: A Perspective
One view of electronic service providers suggests they are merely “sharing” the thoughts and ideas of others, attributing the source of the information, but not doing anything else; merely a conduit for information. Even if the service provider “edits” the material (for accuracy or civility) – as long as the edits do not materially change the original meaning, they are likely to be protected by Section 230 of the Communications Decency Act 0f 1996 (also known as Title V of the Telecommunications Act of 1996).
This is not a legal position that makes vendors happy and many are disturbed when a guest/customer/visitor writes to a TripAdvisor.com type website and alerts readers to a cold hotel pool, a surly front desk employee, or a hotel room that has not been renovated since the Stone Age. Other allegations have included the spotting of bed bugs, rapists, and perverts.
Chris Emmins, KwikChex.com
Chris Emmins, president of KwikChex.com, a UK-based company representing a group of over 100 hospitality, travel, and tourism vendors is filing a defamation action against TripAdvisor.com for sharing comments that Emmins’ group finds to be “a gross distortion and misrepresentation,” and “based on unauthenticated information.” KwikChex is in the business of promoting and protecting reputable businesses and providing reliable information to consumers.
Top of the Abuse Tree
According to Emmins, his proposed litigation does not focus on financial damages, “but rather on changes that will simultaneously benefit … reputable businesses and consumers by providing improved honesty, reliability, and fairness.”
Immunity Available: Three Paths
In an effort to enhance free speech, Section 230 makes it unnecessary for ISPs to unduly restrict customers’ actions for fear of being found legally liable for the conduct of its customers. To come under the Section 230 umbrella:
1. The defendant must be a “provider or user” of an “interactive computer service.”
2. The cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue.
3. Information must be provided by another “information content provider;” the defendant must not be the “information content provider” of the harmful information under discussion.
Lawrence G. Walters, Esq.
According to Lawrence G. Walters, Esq., under Section 230, an organization such as TripAdvisor.com is disseminating user-generated communications protected from liability for defamation. However, if the site takes the user-generated comments and mixes in their own opinion, adopting the comments as their own statements, the outcome might be different.
Walters found that, “Congress made a policy decision to immunize interactive computer service providers from liability for claims like defamation so that those providers would not need to evaluate the accuracy of every comment posted on their websites. Requiring that kind of pre-publication review could cause Internet communications to grind to a screeching halt” (L. Walters, personal communications, September 10, 2010).
Section 230 protects online entities including user-generated content websites that qualify as a provider or user of an interactive computer service. Critics are unhappy with Section 230 for it leaves victims with no hope of relief in those situations where the true tort feasor cannot be identified or are judgment proof.
Emmins finds that TripAdvisor.com proactively influences consumers and, therefore, falls outside the defense of “user-generated content.” In addition, Emmins claims that comments are “extremely serious allegations … that are unverified as even being customers.” He claims that the comments are “not reviews on service, quality of food, or ambiance … they are unsafe and often unfounded accusations of criminality and personal injury for which there appears no evidence.” Emmins determined that the comments are “particularly serious for many of the smaller, independent businesses being affected.”
TripAdvisor.com Aims at Civility
Although bloggers and online forums are not required to establish a standard of acceptable use without risking liability, TripAdvisor.com guidelines do include a quest for knowledge leading to the “best trip ever,” and motivated “by a shared sense of respect for all opinions and people.” Updated on May 20, 2010, the guidelines suggest that the postings be “family friendly” with posters refraining from the use of “objectionable language and images … profanity, obscenity, vulgarity, racial/ethnic slurs, hate speech, personal insults, hostile comments, and threatening language.” Members are asked to “refrain from exposing the real names, home addresses, phone numbers, and email addresses of other members” and limits everyone to “one screen name.”
Between a Rock and a Lawsuit
On August 10, 2010, the SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage) was passed into law to protect against libel tourism from foreign courts unless they are compliant with the US First Amendment. The objective of the provision is to ensure that libel tourists do not attempt to chill speech by suing a third party such as an interactive computer service, rather than the actual author of the offending statement.
US Rep. Steve Cohen, D-Memphis, TN
“Libel tourism threatens to undermine free speech in the US, because with the rise of the Internet and foreign courts’ liberal exercise of personal jurisdiction over Americans, foreign defamation law that lacks the constitutionally-mandated, speech-protective measures of US law can be applied to publications that are substantially or entirely distributed in the US,” said Congressman Steve Cohen during his floor speech.
The line between traditional providers and e-providers is “suspect” according to Ryan A. King of Duke University School of Law. King has determined that under common law, “a provider of a traditional information service is liable if it publishes or distributes defamatory material,” however, a provider of an interactive computer service has immunity from publisher and distributor tort liability. “The service provider may select and publish a defamatory statement made by another party and may refuse to remove the statement from its service even after it knows that the statement is false.”
Thomas Burke and Ambika Doran suggest that there is an “Uncertain future for Section 230 and liability for mixed-content websites.” However, according to Burke and Doran, the courts have shed light on Section230: It applies to ISPs and all online services to which users can post content; immunizes websites from posting third-party content; however, the content provider does not receive the same protection and in some cases, the plaintiffs have tried to force ISPs to disclose the identity of people who posted allegedly defamatory content.
The US Congress recognizes the importance of the Internet and interactive computer services as a source of information development and exchange. It is the intent of Congress to promote continued Internet development, while preserving the free market unfettered by Federal or State regulation.
While Congress and the courts are pushing the envelope for a free exchange of ideas, it would be helpful if the ISPs and interactive services practiced their own sense of due diligence and actually validated and verified the sources and the accuracy of the information being posted to protect the dignity of all parties engaged in the information exchange. One less post is not likely to turn away millions of readers. Perhaps ISPs and related organizations should follow the Hippocratic Oath pledged by medical professionals: Do No Harm!
Burke, T. R., & Doran, A. K. (2007, November). The uncertain future of Section 230 and liability for mixed content website. E-Commerce Law Report, 9 (11), 1-8. Retrieved October 11, 2010 from http://www.dwt.com/portalresource/lookup/wosid/intelliun-1501-992/media.name=/FutureofSection230.pdf
Cohen for Congress. (2010, August 10). President Obama to sign SPEECH Act today. Cohen Congress Building a Better Memphis. Retrieved October 9, 2010 from http://www.cohenforcongress.com/2010/08/10/president-obama-to-sign-speech-act-today/
King, R. W. (2003, October 6). Online defamation: Bringing the communications decency act of 1996 in line with sound public policy. Duke Law & Technology Review. Retrieved October 8, 2010 from http://www.law.duke.edu/journals/dltr/articles/2003dltr0024.html
Masnick, M. (2010, September 9). You shouldn’t lose Section 230 protections by helping a user. Techdirt. Retrieved September 10, 2010, from http://wwww.techdirt.com/blog/php?tag=section+230&edition=techdirt
Section 230 of the Communications Decency Act (2010, October 8). Citizen Media Law Project. Retrieved October 8, 2010, from http://www.citmedialaw.org/section-230
Section 230 of the Communications Decency Act (n.d.). Wikipedia. Retrieved October 8, 2010, from http://en.wikipedia.org/wik/Section_230_0f_the_Communications_Decency_Act
Stamer-Smith, C. (2010, October 8). Tripadvisor review: Can we trust them? Telegraph.co.uk. Retrieved October 9, 2010, from www.telegraph.co.uk/travel/hotelos/805-127/tripadvisor-reviews-can-we-trust-them
What are the guidelines for posting in the forums? (n.d.). Tripadvisor. Retrieved October 9, 2010, from http://www.tripadvisor.com/help/what_are_the _guidelines_for_posting_in_the_forums