No Fee Shift In Bogus Lawsuit Against Review Website-Roca v. PissedConsumer - Technology & Marketing Law Blog (original) (raw)

In October, a court issued a really interesting and decisive Section 230 defense win. I ran out of time to blog it, but a recent follow-on ruling gives me an opportunity to ccover both rulings.

The October Ruling

Roca Labs has developed a prominent and dubious reputation for its online enforcement activities (it has its own category on Techdirt). In this lawsuit, it sued PissedConsumer–a consumer review website and not a stranger to this blog–for defamation, tortious interference and unfair competition based on negative consumer reviews submitted to PissedConsumer. Fortunately, PissedConsumer got a clean sweep on Section 230 grounds:

Tweeting Excerpts. PissedConsumer tweeted excerpts of users’ posts. The tweets only relayed users’ words but omitted many words in order to fit the character limits. The court equates the excerpting process with trimming posts for length, which the Roommates.com case specifically said was OK “provided that the edits are unrelated to the illegality.” The court also cites Doe v. FriendFinder, which found 230 immunity for creating marketing “teasers” from user-submitted profiles. The court summarizes:

Trimming the posts in length to fit within Twitter’s character limit and tweeting a “teaser” or preview of posts do not preclude Consumer Opinion and Opinion Corp. from asserting Section 230 immunity, because the underlying information was provided by a third party.

PissedConsumer’s addition of @ aliases to the tweets, bolding of words or addition of a link to the original post didn’t change this analysis.

SEOing User Posts. Citing Dowbenko, the court says that doing search engine optimization of user content doesn’t affect 230. Citing Gentry, the court also says that compiling star ratings or similar numerical distillations of user feedback is protected by 230.

Other Stuff. These assertions also did not make a difference:

* “pissedconsumer.com’s posting process uses drop down menus and radio buttons”
* “whether a third party is “pissed” or “pleased,” the post shows up as a complaint”
* “companies can pay to have testimonials placed on pissedconsumer.com”

Section 230 also cleans up the state unfair competition claim:

Roca seeks to impose liability under FDUTPA because of (1) the effect of third parties’ posts on pissedconsumer.com and (2) Consumer Opinion and Opinion Corp.’s refusal or failure to remove those posts. Yet, that is exactly the type of liability the CDA precludes.

I didn’t include all of the court’s citations, but the court’s opinion follows naturally from the precedent (especially the Ascentive v. Opinion Corp. ruling from 2011, cited by the court briefly). It shows how Section 230 has built a solid wall of defense-favorable precedent over the years, and how that precedent wall helps resolve a case like this.

December Ruling

Following on the heels of their successful defense, the defendants sought their attorneys’ fees. However, Section 230 doesn’t have a fee-shifting provision, there’s no federal anti-SLAPP law (yet?!), and Florida’s anti-SLAPP law is too narrow to apply to this case. As a result, the defendants based their request on the court’s inherent sanctioning power and the state unfair competition law’s fee-shifting provision.

To make a fee award under the court’s inherent sanctioning power, the court would have to find the plaintiffs acted “in bad faith.” The court responds:

the Court cannot say Roca’s maintenance of this action in the face of Consumer Opinion and Opinion Corp.’s Section 230 defense constituted bad faith. Although the Court ultimately found that Section 230 immunity applied in this case, that conclusion does not justify a post hoc rationalization that Roca’s action must have been unreasonable or without foundation.

The court further declines its discretionary right to award fees under the state unfair competition law.

To me, this case is a textbook illustration of why we need a federal anti-SLAPP law. The way I see it, the lawsuit fundamentally sought to suppress negative consumers reviews–reviews that sought to hold Roca accountable for its marketplace behavior; and reviews that would help other consumers make a better-informed choice about whether to transact with Roca. Fortunately, PissedConsumer didn’t buckle under the pressure of this lawsuit, but an anti-SLAPP fee shift would help discourage other plaintiffs from using litigation for such anti-consumer purposes.

Case citations: Roca Labs, Inc. v. Consumer Opinion Corp., 2015 WL 6437786 (M.D. Fla. Oct. 21, 2015)

and

Roca Labs, Inc. v. Consumer Opinion Corp., 2015 WL 8387974 (M.D. Fla. Dec. 10, 2015)