Did you know, there is a whole cottage industry out there of malicious reviews that are made…simply to destroy competitors or extract improper payments? It’s true…and it may be hurting your business. And a recent federal opinion will only make things worse.
The problem is the Communications Decency Act, which not only does not inspire Decency in Communications, it actually inspires (IN)Decency in online communications because it encourages purveyors of libel and slander to continue making their statements. A case decided in February 2018 only makes things worse…much worse. Read the finding first, then the ugly facts:
Offended by a third-party blog post, Plaintiff Dawn Bennett (Bennett) and her company, DJ Bennett Holdings, LLC (DJ Bennett), sued Google LLC (Google) for failing to remove the post. They alleged three state-law causes of action: (1) defamation; (2) tortious interference with a business relationship; and (3) intentional infliction of emotional distress. The district court granted Google’s motion to dismiss, concluding that the Communications Decency Act (CDA), 47 U.S.C. § 230, immunized Google from liability for the publication of third-party content. We affirm.
Bennett owns DJ Bennett, a retailer of high-end sports apparel.1 Scott Pierson is the founder of The Executive SEO Agency, which provides search engine optimization and marketing (SEO) services. In March 2013, DJ Bennett hired Pierson to provide SEO services, seeking to increase its sales. After a few months, the parties’ relationship deteriorated and Pierson agreed to renegotiate his contract and accept slightly less than $20,000 as full payment for his services.
DJ Bennett paid Pierson in five installments but the fifth installment was returned by the post office as “undeliverable.” Thereafter, Pierson called DJ Bennett’s Vice President and General Merchandise Manager, Anderson McNeill. According to McNeill, Pierson was “hysterical” and “emotionally distraught.” Compl. ¶ 10. Pierson threatened DJ Bennett, declaring “I know things, I can do things, and I will shut down your website.” In response, McNeil explained that DJ Bennett had attempted to mail Pierson his final check but that it had been returned. Pierson then gave McNeil an alternative address, “the last payment was sent there, and [Pierson] cashed it.”
After the business relationship fell apart, Pierson wrote a blog titled “DJ Bennett-think-twice-bad business ethics” and published it on the internet through Google. Id. ¶ 11. Among other things, the blog asserted that (1) “DJ Bennett, the luxury sporting goods company, did not pay its employees or contractors”; (2) DJ Bennett was “ruthlessly run by Dawn Bennett who also operated Bennett Group Financial Services”; (3) Bennett falsely stated that Pierson had agreed to reduce his hours “as justification for reducing his final invoice by $3,200”; (4) Pierson’s counsel described Bennett as “judgment proof”; and (5) “DJ Bennett owes thousands and thousands to many people.” Id. ¶¶ 11-12. The blog concluded: “I urge you to think twice before giving your patronage to DJ Bennett.com . . . . The website is pretty, but the person running the show is quite contemptible.”
Through counsel, Bennett attempted to convince Pierson to remove the post; Pierson refused. Bennett’s counsel also contacted Google’s general counsel and other senior corporate officers, “asking them to drop Pierson’s blog because it violated Google’s Guidelines of what is appropriate material for inclusion in blogs.” Id. ¶ 13. Notwithstanding Bennett’s complaints, Google “continues to publish Pierson’s blog.” Id. Bennett also alleged that “as of May 23, 2016, not a single comment has been received in two years; Pierson was artificially maintaining his blog in a favorable position by using black-hat tactics, a practice universally condemned by the digital media industry, including Google.”
Google has a “Blogger Content Policy” that regulates, inter alia, adult content, child safety, hate speech, crude content, violence, harassment, copyright infringement, and malware and viruses.2 Joint Appendix (JA) 42-45. Users are encouraged to “flag” policy violations through the website. JA 45. If Google finds that the blog does violate its content policies, it may limit access to the blog, delete the blog, disable the author’s access or report the user to law enforcement. Id. If the blog does not violate Google’s policies, Google “will not take any action against the blog or blog owner.”