internet

Review Website Cannot Be Ordered to Take Down Defamatory Posting

Businesses are often faced with negative and harmful information, especially on the internet, and counsel is often tasked with acting to remove or neutralize it.  A recent California decision makes that more difficult, and indicates that using litigation might not be effective in removing offensive content.

 What happens when harsh criticism crosses the line into defamation?  A company can sue the poster for defamation and seek money damages, but those are often hard to collect. Can the company obtain an order requiring the website to take down the offending content?  The California Supreme Court’s decision in Hassell v. Bird (2018) indicates that in many cases, the answer is no.  That court held that although a posting to the popular review website Yelp by an individual had been determined to be defamatory, the federal Communications Decency Act bars any order directed at Yelp requiring it to take down the offending post.  

 This makes controlling negative content about a company or a business more difficult – websites that allow third-party posters are immune not only from suit but even a takedown order.  Many websites will still voluntarily take down offensive content, but the legal ability to force the issue has become harder.  Counsel tasked with dealing with such issues should be aware that litigation, and even threats of litigation, are not likely to be effective in removing offensive content.

California Case Sheds Light on Liability Issues from Use of Internet Bots to Gather Data

A recent California decision, Ticketmaster LLC v. Prestige Entmt Inc. (C.D.Cal 2018) pitted a website owner, Ticketmaster, against a company that used internet bots and other technical tricks to make massive purchases of tickets and then resell them for profit, something Ticketmaster strenuously wished to avoid.  On a motion to dismiss the complaint, the district court dismissed some claims by Ticketmaster but kept others. 

The decision teaches important lessons for companies whose websites contain large amounts of data or transactions to the public, but wish to keep competitors from extracting this data in mass amounts or engaging in mass transactions:

  • Adopt rigorous Terms of Use that prohibit bots, mass data extraction, or whatever other concerns one might have with competitors.
  • Include a license in the Terms of Use to all content and condition the license on adherence to the Terms of Use.
  •  Make rigorous use of technical measures (CAPTCHA, for example) to limit access to mass users, and prohibit circumvention in the Terms of Use.
  • Include liquidated damages provisions in the Terms of Use – but make sure they are reasonable both in the threshold where they kick in, and how they are calculated.
  • Most obviously, make sure that users must affirmatively agree to the Terms of Use – and record their assent to the Terms.