Friday, February 24, 2012

Florida law firm sues ratings site, saying reputational rights trump Section 230


Electronic Frontier Foundation is reporting of a lawsuit filed against a site that hosts individual comments about lawyers by a Florida law firm.

Previously, I’ve covered stories about medical providers who try to force prospective patients to sign “gag orders” before receiving treatment.

The site being sued is “Lawyer Ratings Z” (the “Z” is part of the name), link here. The site home page banner has a caption “Where you are the judge!”

The plaintiff  is called “Florida Probate Lawyer”, link here, with the name “Adrian Philip Thomas, P.A.” (As an aside, my own probate issues in Virginia were very simple.  But that's not always the case for many people.  Remember that great "meeting scene" in the middle of the 1980 film "Body Heat"?)

EFF’s story is here

Section 230 of the 1996 Telecommunications Act  (encompassing the "Communications Decency Act", the censorship provisions of which failed in the Supreme Court) would indeed seem to protect the site from downstream liability for any defamation.

Without the legal protection from downstream liability for user behavior, the site could not exist.  Some people say that without Section 230, Facebook, Yelp, and maybe even Wordpress and Blogger (where this posting is housed) could not exist.  I would be inclined to agree with that supposition.

There was a similarly spirited action against Yelp by a dentist in California recently.

Is there a constitutional claim “reputational  rights”, in the sense that the public does not check up on false claims against a party, and that even many employers judge job applicants based on online reputation, sometimes of the wrong person?

This is a paradigm problem that people didn’t see fifteen years ago as search engines were turned loose.
Online reputation is rapidly growing as a public issue that has been poorly thought through.  In the past year, ordinary users have shown increasing concern.

A recent study found that 44% of Facebook users had deleted comments or postings and even defriended people over reputational issues, especially as Facebook implements “Timeline”.

On perhaps three occasions, with my legacy sites, I was asked to remove a little material (at least names) some years ago. In all of these cases, there were specific unusual circumstances not likely to recur with others. 

By the way, don't confuse Section 230 with DMCA Safe Harbor.  They're for different problems but have similar effects in removing "barriers to entry".