Mass Law Blog Unable to Obtain Dismissal Under CDA

by | Mar 14, 2014

According to Massachusetts U.S. District Court Judge O’Toole the defendants in Moving and Storage, Inc. v. Payanatov are in the moving business and operate a web site at which, they claim, reflects neutral consumer reviews of moving companies.

Not true, assert some of their competitors and the plaintiffs in this case. The plaintiffs allege that MyMovingReviews manipulates the reviews, deleting positive reviews of the plaintiffs and deleting negative reviews of their own company.

Web sites that allow consumer reviews are protected from copyright infringement under the DMCA, and from tort (e.g. defamation) claims under the Communications Decency Act (CDA) assuming, in each instance, that they meet the often strict requirements of the statutes. The defendants claimed the protection of the CDA, and moved to dismiss under that law. Not so, held Judge O’Toole –

The plaintiffs’ claims do not arise from the content of the reviews, whether they be disparaging, laudatory, or neither, but instead, the defendants’ alleged ill-intentioned deletion of positive reviews of the plaintiffs’ moving companies and deletion of negative reviews of their own company, coupled with various representations – that the website offers “accurate” data, that it is “serious about reviews quality,” and that readers “see the most accurate and up to date rating information to base your decision on.” The manner in which the information is presented, or withheld, is the conduct at issue, as well as the allegedly misleading ratings which result from such alleged manipulations. Such conduct provides substantial basis to find that the defendants were developers of the alleged misinformation.

The defendants argued that they were allowed to delete reviews under Section 230(c)(2) of the CDA, which provides that no operator of a website shall be liable for restricting access to material it deems (among other things) objectionable. However, the CDA requires that the website owner show good faith, and the plaintiffs had alleged bad faith.

The court also refused to dismiss a claim of copyright infringement based on the allegation that MyMovingReviews had copied text from a website belonging to one of the plaintiffs.

The court did, however, dismiss claims based on false advertising, unfair competition, tortious interference and trademark infringement. As to the last of these claims, the court rejected an argument in support of trademark infringement based on the controversial (and largely discredited) “initial interest confusion” doctrine, finding that plaintiffs had failed to adequately allege “confusion.”