Court Order Takes Another Stab At Stripping Away Ripoff Report's Section 230 Protections

from the and-the-entity-doing-the-most-damage-to-section-230-is... dept

If anyone's going to succeed in carving a slice out of Section 230 protections, it's probably not going to be law profs and their terrible revenge porn legislation proposals. It will be Xcentric/Ripoff Report, a company that greatly benefits from these protections, but seems intent on muddying the third-party liability waters with questionable actions.

Eric Goldman covers yet another lawsuit involving Xcentric, one that could potentially cause some problems for thousands of other websites and platforms, thanks to lousy 10th Circuit precedent and the presiding judge's less-than-impressed take on Ripoff Report's tactics. Goldman quotes a fair bit of the order denying Xcentric's motion to reconsider its earlier (denied) motion to dismiss, pointing out the dubious precedent the court is relying on, as well as the inferences it draws from various Ripoff Report actions and statements.

First off, the court refers to 2009's FTC vs. Accusearch decision, which contains one of the district's more dubious Section 230 rulings.

Xcentric’s motion fails on the merits. The controlling authority for the interpretation of the CDA in the Tenth Circuit is FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009). Notwithstanding Xcentric’s claim that the Tenth Circuit was haphazard in its language, the Court stated: “We therefore conclude that a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content.”
The court came to the right decision then, but for the wrong reasons. Accusearch (aka, Akiba) was selling illicitly-obtained phone records, something that was clearly illegal. The court decided this implicated Section 230, thanks to Akiba raising it as a defense. It argued it was only the conduit between buyers and sellers and did no collection of phone records itself. This was partly true. But Akiba did more than act as an Amazon or Ebay of phone records. It directly sold records provided by third parties. This should have been what erased its Section 230 protections, but the court thought otherwise.

It ruled that Akiba was a "publisher" or "speaker," using very vaguely-drawn definitions of these terms. Furthermore, it asserted Akiba "participated in the creation or development of information," something it didn't seem to have done.

Goldman:
As for the interpretation of “creation and development,” I don’t see how anyone can interpret those words to include retailing a record without any modifications at all.
So, the court reached the right decision but deployed dodgy arguments. Now these arguments are being used to punch holes in Section 230 in this Xcentric case.

On top of the questionable precedent it cites, the court also finds other actions by Xcentric to be adversely effecting its 230 protections.
Xcentric argues that drawing all inferences in favor of Vision Security, it must be found to have been a neutral publisher. The facts as alleged, however, support a contrary conclusion. Applying the Iqbal standard, the court must give weight to the following allegations: Xcentric maintains the “Ripoff Report” website with a tag line, “By Consumers, for consumers” and “Don’t let them get away with it. Let the truth be known.” Contrary to the stated tagline, the Ripoff Report allows competitors, not just consumers, to post comments. The Ripoff Report home page states: “Complaints Reviews Scams Lawsuits Frauds Reported, File your review. Consumers educating consumers.” These allegations allow a reasonable inference that the Ripoff Report encourages negative content.
From there, the court wanders into a discussion of something nearing extortion allegations.
These specifically pleaded facts support a reasonable inference that Xcentric was not a neutral publisher. It had an interest in, and encouraged, negative content. It refused to remove the content, even when told by the author that it was false and he wanted it removed. What interest would a neutral publisher have in maintaining false and harmful content against the wishes of the author unless it advanced its own commercial interests? The alleged facts allow a reasonable inference that Xcentric refused to remove the offensive content to promote its own corporate advocacy program. Indeed, it is reasonable to infer that the very raison d’etre for the website was to commercialize on its ability to sell its program to counter the offensive content the Ripoff Report encouraged.
The conclusion the court reaches is that Xcentric is not immune under Section 230. This case hasn't been decided yet, but these opinions -- considering the precedent being cited -- have the potential to do genuine harm to Section 230 protections, at least in the Tenth Circuit. As Goldman points out, a favorable ruling employing these arguments would lay out a welcome mat for a ton of questionable lawsuits.
What stands out most to me is the favorable citation to the Accusearch case. It’s the governing law in the Tenth Circuit, so it’s an entirely appropriate citation, but this is additional evidence that perhaps the Accusearch case has done more damage to Section 230 than the more publicized Roommates.com case. I’m reminded of another recent bad Section 230 ruling, the General Steel v. Chumley case, also in the Tenth Circuit and also favorably citing Accusearch. To me, I’m getting nervous that Accusearch has tainted the Tenth Circuit’s jurisprudence such that we’ll see continued anomalous cases there. It would be a green light for Section 230 haters to forum-shop their cases into the Tenth Circuit.
Goldman also posits this combination of rulings has turned the definition of "neutral publisher" into an unreachable ideal.
The court’s legal test of “neutral publisher” is an oxymoron and incoherent. By definition, no publisher is ever neutral. Instead, any legal standard dependent on “neutrality” becomes a placeholder for other social norms. As we saw in the Washington Supreme Court Backpage ruling, when the battleground shifts to a website’s purported “neutrality,” the defendants are in trouble. In this case, the court misinterprets “neutrality” to mean that soliciting only negative reviews wasn’t “neutral.” By the same implication, then, a website that only permitted positive reviews wouldn’t be “neutral” either (for example, eBay’s feedback forum restricts sellers to only leaving positive feedback for buyers). [...] Now, in light of the Backpage ruling, I expect anti-230 plaintiffs will call the defendant “non-neutral” in every complaint. Can’t hurt, might help.
That's something Section 230 doesn't need: additional opportunities for misguided plaintiffs to throw every argument against a friendly venue's walls and hope that something sticks. Ripoff Report -- which spends a great deal of time in court -- uses its Section 230 protections to their fullest extent. The problem is that it deploys certain tactics that courts find unpleasant. While these really shouldn't be enough to strip it of these protections, the tactics do seem to be having a deleterious effect on judges' opinion of the website. And once one decides it has crossed the line, Section 230 protections will begin eroding quickly.

Filed Under: cda, jurisdiction shopping, liability, secondary liability, section 230, tenth circuit
Companies: ripoff report, xcentric


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 22 Sep 2015 @ 3:45pm

    Section 230 Protections exist only because courts haven't yet trimmed it to existing over-arching law.

    It's not absolute protection. Circumstances do matter. Evolving law. Get ready to be regulated, kids, the wild west phase is over.

    Also, if a site, say, offers a public comment box, but actually allows only one kind of speech (*cough* piratey) and never "moderates" those who conform to its own views, while doing all it can to prevent other points of view from even being seen despite dozens of attempts that rule out all possibility of usual problems, then it has forfeited all Section 230 Protections.


    Case in point: attempt #6!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Sep 2015 @ 3:46pm

    Section 230 Protections exist only because courts haven't yet trimmed it to existing over-arching law.

    It's not absolute protection. Circumstances do matter. Evolving law. Get ready to be regulated, kids, the wild west phase is over.

    Also, if a site, say, offers a public comment box, but actually allows only one kind of speech (*cough* piratey) and never "moderates" those who conform to its own views, while doing all it can to prevent other points of view from even being seen despite dozens of attempts that rule out all possibility of usual problems, then it has forfeited all Section 230 Protections.


    Case in point: attempt #7!

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 22 Sep 2015 @ 3:47pm

      Re: Section 230 Protections exist only because courts haven't yet trimmed it to existing over-arching law.

      Yay, me! Wish I could have gotten in on the Librarian of Congress thread with FORTY-SEVEN TRIES!

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 22 Sep 2015 @ 3:49pm

      Re: Section 230 Protections exist only because courts haven't yet trimmed it to existing over-arching law.

      By the way, Techdirt: YOU ARE NOT HELPING Section 230 protections to stay in place! At all. Just practice what you preach about free speech.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Sep 2015 @ 5:43pm

        Re: Re: Section 230 Protections exist only because courts haven't yet trimmed it to existing over-arching law.

        Way to totally misunderstand section 230, which actually is par for the course for control junkies like you.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Sep 2015 @ 4:04pm

      Um, no

      How does moderating attempts by a troll to spam the forum mean that Techdirt suddenly becomes liable for the things that people post in the comments? [citation needed]

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Sep 2015 @ 5:44pm

      Re: Section 230 Protections exist only because courts haven't yet trimmed it to existing over-arching law.

      Do try to keep up with all the speech the cool kids are having that you aren't, old man.

      reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 23 Sep 2015 @ 9:14am

      Re: Section 230 Protections exist only because courts haven't yet trimmed it to existing over-arching law.

      Also, if a site, say, offers a public comment box, but actually allows only one kind of speech (*cough* piratey) and never "moderates" those who conform to its own views, while doing all it can to prevent other points of view from even being seen despite dozens of attempts that rule out all possibility of usual problems, then it has forfeited all Section 230 Protections.



      You keep repeating this and you are still dead wrong, Blue. You cannot redefine a Federal statute just to sooth your butt-hurt at being shown the door by the Techdirt community every time you post a comment. Here's what an actual lawyer has to say about comment moderation and Section 230 protections:

      https://randazza.wordpress.com/2014/03/15/no-section-230-does-not-prohibit-you-from-bein g-responsible/

      Because you keep repeating this bullshit about Section 230 and comment moderation, I will now direct a quote by Marc from the linked article at you:
      "Hey, you’re either really stupid, or fucking dishonest."

      reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 23 Sep 2015 @ 12:21pm

      Trolling, trolling, trolling, ...

      ... but actually allows only one kind of speech (*cough* piratey) ...

      Sorry, that's not true. I call for boycotting crap sold by crap producers and copyright maximalists all the time because of all the collateral damage "protecting" imaginary property is causing to society, yet I've never found my suggestions reported.

      I really don't give a rat's ass how many attempts it takes you to post your drivel. It informs no-one of anything, insults and abuses everyone, and is of as much value as flatulence left in an elevator by a previous occupant.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2015 @ 4:40pm

    That opinion by that idiotic judge is going to open the floodgates for every website, and I mean EVERY website, who allows anyone to post a comment or message to be sued. There is absolutely no way that the federal courts would ever allow that to stand.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2015 @ 9:41pm

    ED Magedson Ripoff Report Xcentric Ventures Created Content For Publication On Rip-off Report

    reply to this | link to this | view in chronology ]

    • identicon
      Stick Bogart, 22 Sep 2015 @ 11:24pm

      Re: ED Magedson Ripoff Report Xcentric Ventures Created Content For Publication On Rip-off Report

      This comment was made by Darren M. Meade who is trying to extort the Ripoff Report by threatening to drag us thru a costly bogus lawsuit. What he says is all lies to further intimidate Ed to pay him.

      Ripoff Report will not pay a liar like Darren M. Meade a cent, not a cent!

      reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 22 Sep 2015 @ 10:50pm

    Section 230 cannot be a blanket excuse

    I think the courts are being pretty narrow here in their interpretations. The original 2009 judgement is sound and pretty logical, pointing out that there is a point where the "service provider" isn't just providing a service, but becomes a defacto participant. That line isn't a clear and simple test, but rather has a whole lot of grey in which the legal system can swim.

    Ripoff Report by it's nature may in fact be encouraging malicious and misleading posts, and misleading the general public as to their sources.

    Goldman's neutral publisher arguments in fact seem to make the case against 230 protections. If a service cannot by it's nature be neutral, should it's slanted views be somehow more protected than the general public? It is perhaps the best argument for the difference between a true service provider (say like a phone company or ISP) versus an opinion based web forum.

    I know it's not a popular opinion around here, but once again, I can see where the courts are (IMHO) wisely looking around the wall of section 230 and assuring that some of the more "engaged service providers" are held accountable for their actions beyond the levels of neutral service.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Sep 2015 @ 11:14pm

      Re: Section 230 cannot be a blanket excuse

      The short versions are, "Yes, but not necessarily by 230 provisions, dependent upon the contact".

      The longer version is that, as of yet, the plaintiffs haven't shown anything that should remove Ripoff Report's Section 230 protections. Until that changes, I'm siding with Ripoff Report.

      reply to this | link to this | view in chronology ]

      • icon
        tqk (profile), 23 Sep 2015 @ 2:09pm

        Re: Re: Section 230 cannot be a blanket excuse

        The longer version is that, as of yet, the plaintiffs haven't shown anything that should remove Ripoff Report's Section 230 protections.

        I think the story is suggesting that RR is doing this defence of itself in all the wrong ways possible, suggesting incompetent counsel perhaps, to me. I've no sticks in this fire (never had anything to do with RR). Just sayin'.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Sep 2015 @ 11:36am

      Re: Section 230 cannot be a blanket excuse

      It is perhaps the best argument for the difference between a true service provider (say like a phone company or ISP) versus an opinion based web forum.
      Of course, as we discussed the other day, Congress clearly intended in enacting § 230 to overrule Stratton-Oakmont v Prodigy (N.Y. Sup. Ct. 1995). Thus, the base argument that the law should revert to distinguishing service providers from forums under editorial control, or in the older language, distinguish “distributor” liability from “publisher” liability, is an argument best addressed to the Congress.

      I understand that you aren't advocating here that the courts should wholesale-rewrite the statute back to the old common law, but you're instead just advocating a teensy bit of sensible nibbling around the edges. That is what courts traditionally do, when they maybe don't really like something Congress did. Nibble a bit around the edges. Sensibly.

      reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 23 Sep 2015 @ 12:19pm

        Re: Re: Section 230 cannot be a blanket excuse

        "Thus, the base argument that the law should revert to distinguishing service providers from forums under editorial control, or in the older language, distinguish “distributor” liability from “publisher” liability, is an argument best addressed to the Congress."

        The courts are generally unwilling to leave defendants and plaintiffs swinging in the breeze waiting for congress to explain itself. When called upon, the courts must decide what the letter of the law (and perhaps the intent of the law) spells out in real world terms.

        I think honestly that the courts are onto something here. For me, Ripoff Report is able to hide from liability as a service provider, yet they appear to offer somewhat more of a service, to the point of perhaps encouraging people to post less than truthful reviews with the intent to cause harm to businesses and their owners. There is some indication (however vague) that some of the content on the site may not be user sourced, or may be knowingly sources from competitors and others with an axe to grind.

        There is a point, somewhere, that Ripoff Report (and sites like them) stop being just a service, and become an active participant in what is a virtual lynch mob. Legally I don't know if all that adds up to enough, but clearly there is a need to better define the spot where service provider ends. If the courts do it, potentially they will draw the line in a place that makes nobody happy.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Sep 2015 @ 1:31pm

          Re: Re: Re: Section 230 cannot be a blanket excuse

          … to the point of perhaps encouraging people to post less than truthful reviews…
          I'm reminded here of the Sullivan court's 1964 observation that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they “need . . . to survive,’ ”. Mr Justice Brennan traced the idea back to James Madison's thought:
          Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.
          The raw existence of a means of public communication inevitably “encourages” people to post less than truthful items.

          Mere “encouragement” of falsity cannot be the proper test.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2015 @ 11:35pm

    ED Magedson and Ripoff Report Indicted Soon!

    You're all looking at this the wrong way. Don't worry about the Communications Decency Act which absolves them of responsibility for user generated comments. Worry about what they DO control.

    Defamation, and in this case libel, is present, but it's not only in ROR's legally protected user generateed postings. It's also in the structure of their title tags, which on the search results is the most prominent piece of information (both in text size AND order of listing).

    The name of their website implies fraudulent activity...a "rip off", if you will. They use auto generated URL's, so there is no printed association with the business there. Their title tags, however, which they have control over, HAVE TO NAME THE BUSINESS OR IT WON'T RANK.

    In short, they are committing defamation by using the name of the business in conjunction with the name of their site in the title tag. It's no different than if I started a site called www.rapespuppies.com and used a title tag structure of (business name here) Rapes Puppies. It's obvious that regardless of my stated intentions, the damage is done as a result of something I had complete control over.

    If you want to go class action, do it on the title tags. They will either have to change the name of the site to something non-libelous (which they won't do) or remove the target business' name from the tags (in which case they won't rank).

    They certainly can't argue that placing a business' name next to the words "Rip Off", (whether merited or not and for all the world to see) isn't damaging. You might need intent to win monetary damages, but you don't need intent to get the desired result, which is to put ROR out of commission - and this is the way to do it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Sep 2015 @ 11:50pm

    Danny Scalf under the name of Frank Torelli created content for ED Magedson and Ripoff Report

    Recordings on http://www.paladinpi.com/blog/ expose ED Magedson giving his sugar baby James Rogers a script and telling his to go create logins so Rogers could create posts on Ripoff Report and rebuttals on other reports on Ripoff Report. Rogers also on audio claims ED Magedson had him wire money to David Bedore using your Rogers ID so the money would not trace to Magedson. Rogers admits that David Bedore and ED Magedson have a similar fondness for each other.

    Danny Scalf under the name Frank Torelli created many stories too. There is 60 hours of recordings that famed investigator John Brewington has of the "Secret Warrior", who left a trail a mile long including money changing hands. Offers to sell investigations to lawyers so they can pump up class action suits. Claims ROR is a not for profit so it will look good to the public and get grant money.

    Trying to get access to sensitive databases reserved for professional intelligence gathering organizations, including PIs, by telling them ROR was a debt collector. These databases have social security numbers, relatives, neighbors etc on them. Why would they want that?

    On the recording Rogers says he was instructed to go to Google and click on certain names that had a ROR posts. Blue World Pools was such a victim and now is a Corporate Advocacy Program victim.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Sep 2015 @ 12:08am

    Ripoff Report Owner Ed Magedson and staff writer Darren M. Meade indicated in multiple crimes

    Ripoff Report Owner Ed Magedson and staff writer Darren M. Meade indicated in multiple crimes including extortion & witness tampering against Michael Roberts.

    reply to this | link to this | view in chronology ]

    • icon
      Darren Meade (profile), 26 May 2017 @ 7:47pm

      Charges Against Darren Meade Dismissed With Prejudice

      Because of the threat to our criminal justice system and the implicit biases that favor a prosecutor, it is necessary to use this introduction to prevent these biases from impacting the judicial system and to reduce the manner in which previous claims about DA Ben Smith motives and
      behavior have polarized this case.

      A prosecutor is just a human being susceptible to biases like everyone else. These biases can cause that prosecutor to become improperly focused on a specific person or a certain legal theory.

      These biases can cause the prosecutor to become emotionally involved with a witness or suspect, in this case either his future in-laws as key witnesses or the person referred to
      in this Complaint as the “Male Suspect" who happens to own a reputation management company.

      These biases can also cause a prosecutor to become too emotionally connected to the discovery of a key piece of evidence, in this case the pink notebook.

      The issue in this claim concerns prosecutorial discretion and the power of the office. As a result of a series of events and emotionally driven responses, Mr. Smith used his discretion and the power of his office to investigate a number of people who were questioning his emotional
      reactions and ultimately, to indict Darren Meade.

      I may or may not win the Pulitzer Prize for reporting, I may not be a lawyer and I may be wrong about many things, but there were good reason for anyone to be concerned about this situation and I had a right and duty to say something. If no one listens or if Smith trashes me personally, so be it, but to use his power to punish me and shut me down and ruin my life is unwarranted, offensive and illegal. I may be wrong on my broader concerns about a conspiracy with Roberts and Smith, but when Smith went that far to punish not just me but others, it makes me unable to shake that I am right about that as well.

      Currently we are suing County Attorney Ben Smith and the State of Iowa for $25M

      My dismissal hearing of the indictment is available here:

      https://youtu.be/98WnZysDT9o

      reply to this | link to this | view in chronology ]

  • identicon
    Stick Bogart, 23 Sep 2015 @ 3:03am

    Darren M. Meade is a criminal

    Let us not forget that when Darren M. Meade said that he was working for Ed Magedson he was also claiming SSA and SSDI.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 23 Sep 2015 @ 4:53am

    Call me cynical but it seems some companies exist with the purpose of setting bad precedents. I wonder if it's mere conspiracy...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Sep 2015 @ 9:43pm

    ED Magedson has been foisting his useless frauduct (Ripoff Report) on our society for a quarter of a century.

    The uncredentialed :: uneducated :: unimaginable bastard pretends to be a “consumer advocate” and “champion of consumers” … but those are just words for self-obsessed dumb dumbs. The reality is that ED Magedson is an aggressive extortionist. That is all. Yes :: he is hella good at it … but that’s not a fucking compliment.

    reply to this | link to this | view in chronology ]

    • identicon
      Stick Bogart, 24 Sep 2015 @ 11:45pm

      Re: ED Magedson has been foisting his useless frauduct (Ripoff Report) on our society for a quarter of a century.

      You have no proof of these bogus accusations about Ed Magedson. Many people have been saying for years that they have proof that Ed is an extortionist or is guilty of RICO but no-one has provided a shred of proof, not a shred!

      Darren M.Meade is lame of foot and lame in the brain. Where is this lawsuit he says he will file? The gimp is a liar and trying to hurt the Ripoff Report. Meade is a coward who can't get any attorney to represent him because he does not have a case, only lies.

      Darren M. Meade threatens to go to the FBI but he wont because he has no proof and even if he did the FBI wont take the word of a gimp who tried to rip off the American people by accepting Ed's charity when he got SSDI.

      Ed Magedson supports the First Amendment but Darren M. Meade cant even support himself. He is broke and homeless and stupidly trying to extort Ed Magedson. Meade is a criminal, not a smart person and he is a coward.

      Ed laughs at the gimp trying to extort him while hiding that he rippred off the American people.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown for basic formatting. (HTML is not supported.)
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown for basic formatting. (HTML is not supported.)
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.