Plaintiff apparently writes cranky book reviews. I'm not sure what books motivated him to make the observations that soon-to-be-thrice-indicted former President Trump is a "buffoon" and that "many Millennials are woketards," but those comments, along with a few others, lost him his reviewing privileges on Amazon for violating Amazon's Conditions of Use and its Community Guidelines.
First, plaintiff brought an arbitration action against Amazon, and lost, and then he sued. In his suit, filed in the federal district court of Washington, he alleged (i) breach of contract based on Amazon's removal of his reviews and their ban on his posting reviews, (ii) breach of Amazon's implied duty of good faith and fair dealing by failing to adequately explain its actions with respect to his review privileges, (iii) violation of Washington's Consumer Protection Act based on Amazon's practice of not sufficiently explaining its decisions and its inconsistent application of the Conditions and Guidelines and (iv) a declaration that section 230 of the Communications Decency Act (CDA), did not bar his claims.
The court was having none of it. In granting Amazon's motion to dismiss, the court determined first that the breach of contract claim could not survive because the complaint "identifies no provision from the Conditions and Guidelines that imposes a contractual duty that Amazon purportedly breached. Failing to identify a breached contractual provision dooms a breach of contract claim." Rather, the court found, "the plain language of the Conditions grants Amazon—in its 'sole discretion'—the right to remove Plaintiff's reviews and revoke his review privileges." Same with the breach of good faith and fair dealing: no provision to breach, ergo no breach. (Moreover, as the court noted in a footnote, "because the contract unambiguously grants Amazon the sole discretion to moderate content, it does not appear that such a 'good faith requirement exists." We'll return to that shortly.)
The plaintiff's claim premised on the Washington Consumer Protection Act was similarly flawed: "The Conditions and Guidelines expressly provide that Amazon may [remove reviews and revoke reviewing privileges]. Reasonable consumers, after reading the Conditions and Guidelines, would understand that Amazon reserves the right to remove reviews or terminate access to services in Amazon's sole discretion. And exercising a right that a contract permits and is fully disclosed to the parties in advance is not an unfair or deceptive act or practice." (We'll return to that shortly too.)
Finally, plaintiff sought a declaration that Amazon's acts were not immunized by the CDA. As a preliminary matter, the court spelled out the basis for CDA immunity: (1) "the provider is an interactive computer service"; (2) "the plaintiff is treating the entity as the publisher or speaker"; and (3) "the information is provided by another information content provider." The Court easily found that Amazon is an interactive computer service, that the plaintiff treated it as a publisher of book reviews and that plaintiff, not Amazon, provided the content at issue (Plaintiff's reviews), hence satisfying the test for immunity.
However, and this is my favorite part, plaintiff then argued that Amazon "mistakenly blurred the distinction between section 230(c)(1) immunity, which Amazon relies on, and section 230(c)(2) immunity," and that "when an interactive computer service provider 'restricts' or 'takes down' content, companies may invoke only section 230(c)(2)—and not section 230(c)(1)—to provide protection." To support this argument, the plaintiff cited a concurring opinion by Justice Thomas in a denial of cert decision where the Supreme Court Justice "questioned the Ninth Circuit's broad interpretation of section 230(c)(1) that often immunizes Internet companies against liability arising from content created by third parties." However, as the district court noted "...Justice Thomas's concurrence does not constitute binding authority. And binding Ninth Circuit authority holds that section 230(c)(1) immunizes interactive computer service providers' decisions to both publish content or remove content."
Accordingly, the court held that plaintiff's claims were barred by section 230 of the CDA. So very barred that the court also concluded that granting the plaintiff leave to amend "would be futile."
Okay, so why is this case blog-worthy? Well, stories about determined plaintiffs who use the courts to tilt at windmills are always fun. And of course, the fundamental principle that a website's terms and conditions will govern the interaction between the site and its users is always worth keeping in mind when drafting such terms. (And taking steps to ensure that those terms are accepted by users so that they'll be enforceable.)
But also interesting to me is the tension --- particularly when it comes to product reviews – between what a site may permissibly reject and remove as an immunized publisher of third party content and what it cannot. As a "publisher" of third party content, it is perfectly appropriate for platform to create rules for permissible content that third parties may post on its site: to bar hate speech, obscenity, violent speech, etc. But, as the FTC has made clear, online retailers, review platforms, and other companies who collect reviews from consumers have other specific obligations: they must avoid offering incentives only for positive reviews, or taking improper steps to avoid collecting negative reviews. In moderating the reviews they collect, they must treat positive and negative reviews equally, and must not edit reviews to change their meaning or to make them more positive. And their review publication policies and practices also should be transparent and inclusive of all genuine reviews, not just positive ones.
These obligations do seem to require that publishers "act in good faith" in making their judgments about what reviews can be removed. And creating terms that would allow a website to avoid these obligations by just telling users that it is permitted to remove content "in its discretion," if relied on only to remove negative reviews of a product, would probably not pass FTC muster.
I am not suggesting that the plaintiff here had any of these arguments available to him, for a host of reasons, including the absence of any allegation that Amazon's rejection of this reviewer and these reviews were part of a pattern of negative review suppression. Indeed, I don't even know if the book reviews at issue were negative, or just included nasty comments. (And do we think about book reviews the same way we think about other product reviews? Probably not.) But any case involving a platform rejecting reviews is interesting because of this tension, particularly in light of the FTC's sustained focus on preserving the integrity of the review eco-system. This may have been an easy case for Amazon, but there will be harder ones down the road.
Charles Haywood v. Amazon.com, Inc. et al., case number 2:22-cv-01094 (W.D.WA.)
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
