Roca Labs Loses Its Lawsuit Against Pissed Consumer (Badly)

Legal Issues

from the just-one-of-many-issues... dept

Roca Labs has not been having a good fall. Just a few weeks after the FTC came down hard on Roca Labs, for its ridiculous gag clause, as well as for its misleading marketing, it appears that Roca Labs has now lost its lawsuit against Pissed Consumer. As you may recall, we first wrote about Roca Labs a little over a year ago when it sued PissedConsumer, ridiculously arguing “tortious interference” because Pissed Consumer effectively encouraged people to write negative reviews which would, in turn, violate the gag clause in Roca Labs sales’ contract. This seemed like a ridiculous stretch and… the court agreed. The judge has little trouble pointing out that CDA 230 clearly protects Pissed Consumer from liability for any reviews written by users, noting that CDA 230 protects against tortious interference claims.

One by one, the court rejects Roca Labs’ ridiculous attempts to get around CDA 230. First, Roca argued that because Pissed Consumer tweeted out links to the negative Roca reviews (and shortened some quotes to fit into Twitter’s 140 character limit), that made it no longer a service provider. The court says “that’s not how this works…” It points to other cases that clearly say editing others content or trimming it for length still retain CDA 230 immunity. And notes that even if the statements were defamatory, CDA 230 still protects the reposting:

reposting allegedly defamatory comments authored by third parties does not preclude Section 230 immunity….

[….]

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.

The fact that Pissed Consumer added Roca Labs’ Twitter handle to its tweets doesn’t change anything either. Nor does the addition of links.

With respect to the addition of links to the tweets, providing links to negative costumer-review posts does not preclude Section 230 immunity. For example, in Directory Assistants, several defamatory posts about the plaintiff were placed on a consumer-review website…. The defendant then forwarded links to those allegedly defamatory comments via email to a prospective client of the plaintiff…. The plaintiff sued for tortious interference with a business expectancy and the defendant asserted Section 230 immunity…. The court found forwarding links to negative posts did not constitute content creation and therefore the defendant was immune under Section 230.

Okay, then, how about the fact that Pissed Consumer did some search engine optimization to make the reviews more findable on Google. The court basically says “so what?”

Search engine optimization does not vitiate immunity under Section 230 of the CDA. In Dowbenko, the plaintiff alleged Google published a defamatory article about the plaintiff on a website…. Google allegedly used algorithms to manipulate its search results causing the article to appear directly below the plaintiff?s own website in Google searches…. The district court granted Google immunity and the Dowbenko court affirmed, holding that search engine optimization does not preclude Section 230 immunity…. The court also held that a service provider?s or user?s refusal or failure to remove defamatory comments does not preclude Section 230 immunity…

The court also rejects the idea that because Pissed Consumer offers pull down menus whereby users indicate if they were “pissed” or “pleased” it somehow wipes away Section 230 immunities. It does not.

Roca?s argument that pissedconsumer.com materially contributed to the complained of posts is unavailing. Roca argues that Consumer Opinion and Opinion Corp. are information content providers because pissedconsumer.com?s posting process uses drop down menus and radio buttons…. Roca continues by stating that regardless of whether a third party is ?pissed? or ?pleased,? the post shows up as a complaint…. Roca also argues Consumer Opinion and Opinion Corp. are information content providers because companies can pay to have testimonials placed on pissedconsumer.com….

Courts, however, have held such processes do not turn a service provider into an information content provider. For example, in Xcentric Ventures the complaint brought a defamation claim arising from comments left on a consumer-complaint website…. The plaintiff argued that because the website provided categorical descriptions from which a third party could select, the website was an information content provider…. The court rejected that argument reasoning the website provided multiple descriptions and the website?s operators did not participate in the selection of descriptions….. Rather, the third parties selected the descriptions…. Accordingly, the court found that Section 230 immunity applied to the website.

The court also laughs away Roca’s continued pointing to Florida’s Deceptive and Unfair Trade Practices Act (FDUPTA) noting that (1) Roca would have to show that Pissed Consumer’s practices were deceptive and unfair and (2) it doesn’t matter anyway because the site is protected by CDA 230.

In short, the court pretty easily knocks down every argument from Roca Labs and agrees that Pissed Consumer is protected by Section 230 — exactly as we predicted 13 months ago when we first posted about the lawsuit. Of course, in the intervening months, Roca Labs has threatened to sue us and others multiple times, and has actually filed lawsuits against former customers, some other online critics, and one of Pissed Consumer’s lawyers, Marc Randazza. And, it’s actually still fighting against the FTC, arguing that the gag clause in its agreements is perfectly valid. I imagine an apology from Roca Labs for wasting our time with bogus legal threats isn’t likely forthcoming, but I’ll chalk it up to the fact that the company is probably pretty busy dealing with the FTC.

Filed Under: cda 230, gag clause, gastric bypass alternative, immunity, reviews, weight loss
Companies: consumer opinion corp., pissed consumer, roca labs