Massachusetts Federal Court rules against Craft Beer Cellar in dispute with Glassdoor.com over anonymous negative online comments
Reporter and spectacular beer writer, Bryan Roth, published an excellent in-depth piece about Craft Beer Cellar and some of their legal issues over at Good Beer Hunting in June of this year (link to article).
One of the legal battles referenced in the article was a lawsuit Craft Beer Cellar filed against Glassdoor.com over a series of anonymous negative posts made on the website about the franchise and its owners. Craft Beer Cellar, which runs craft beer stores and franchises the opportunity to be a craft beer retailer to others, took issue with negative posts which were made over several months in late 2017 and early 2018 by someone identifying themselves as an employee of Craft Beer Cellar. In early 2018, one of the Craft Beer Cellar’s owners sent an email to Glassdoor asking it for assistance in reviewing six inappropriate reviews. Glassdoor responded letting CBC know that it had removed one of the six reviews. A week later, Glassdoor wrote CBC to let them know that the removed review had been re-posted and let CBC know that the review would not be re-removed as it now met Glassdoor’s guidelines.
CBC sued Glassdoor claiming that the posting violated the recent Defend Trade Secrets Act, the Computer Fraud and Abuse Act, the Massachusetts Trade Secrets Act and a Mass. Consumer protection act as well as for aiding and abetting the anonymous posters’ various torts and contractual breaches and for civil conspiracy.
Glassdoor responded noting that internet publishers enjoy a great deal of immunity under a section of the Communications Decency Act of 1996 – specifically, Section 230 or 47 U.S.C. 230(c) for those of you looking for a little more info. Based on the immunity granted by Section 230, Glassdoor requested the case be dismissed.
The Court agreed noting that the Section 230 provides that “no provide or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider and that no “cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section .”
The history of this statute is that it is Congress’s response to court cases that had hold internet publishers liable for defamatory statements posted by third parties on message boards maintained by the publishers.
The immunity of Section 230 was emplaced to prevent tort liability from chilling free speech and to remove disincentives to self-regulation that would otherwise result if liability were imposed on intermediaries that took an active role in screening content – for example filtering or editing out inappropriate content. Zeran v. America Online Inc.
In spite of Section 230’s broad prohibitions on holding publisher’s liable, CBC hoped to have the Court hold Glassdoor liable because the act of removing but then watching the reposting and failing to re-remove showed that Glassdoor was acting as more than a publisher and was taking a role by materially revising and changing content.
The Court rejected this argument finding that the removal of a review for violating guidelines and then allowing an updated review that complied with the guidelines did not amount to a material revision:
If Glassdoor’s decision to remove the review—and its subsequent decision to allow an updated version of the review to be re-posted—eliminates its § 230 immunity, the result would be exactly what the First Circuit warned against in Jane Doe No. 1: it would “hold a service provider liable for its exercise of a publisher’s traditional editorial functions . . . such as deciding whether to publish [or] withdraw . . . content.” Jane Doe No. 1, at 18. In other words, holding Glassdoor liable for simply screening the posts on its website would directly counter the CDA, and create a “disincentive” against “self-regulation” by websites. Lycos, 478 F.3d at 418-19.
In short, Glassdoor’s decisions to remove the “review,” and to permit an updated version to be re-posted, constituted the exercise of a traditional editorial function. Without more, Glassdoor cannot be deemed responsible for creating or developing the content. Accordingly, Glassdoor is an “interactive computer service” covered by the grant of immunity in § 230.
After dismissing the main claim based on Section 230 immunity, the Court also rejected the other claims made by CBC including a novel argument by CBC that in spite of the Defend Trade Secrets Act’s provisions stating that it wasn’t to be treated as an intellectual property law, it should be for purposes of liability under Section 230. This wasn’t a great argument as the plain language of the Act contravened this request.
You can read the recent opinion dismissing the case and detailing the facts and the Court’s ruling here. For those curious, a copy of the amended complaint that was dismissed can be read here, and a copy of the motion to dismiss filed by Glassdoor can be found here.
Interestingly, between Section 203’s grant of immunity to publishers, and the recent Consumer Review Fairness Act, the task of removing anonymous online comments unless you can meet an Act’s exceptions appears to be an uphill battle.