The Legal Magic Bullet That Protects Twitter And Yelp

Yelp and Twitter both get thousands of complaints a month, often asking for material to be taken down that is allegedly defamatory or otherwise illegal. They almost never comply. Speaking today at an event in Silicon Valley, the general counsels of both companies gave insight into how they deal with the flood of vitriol that vigorous user-generated content sites produce–and praised the U.S. law that protects their businesses from frivolous speech-based lawsuits.

That law is Section 230 of the Communications Decency Act (CDA), and it has an unusual history. The CDA was essentially meant to be the first regulation of online pornography, and was passed overwhelmingly in 1996 despite concerns by free speech advocates. Section 230 of that law was meant to balance it out by protecting websites from liability for things their users post or write.

But in 1997, the U.S. Supreme Court struck down all of the CDA, except Section 230. (That produced the odd result that this key internet law in the U.S. bears the name “Communications Decency Act,” which is misleading.)

Today, CDA 230 is the law that protects websites from lawsuits over speech in their online forums, even if they refuse to take down the offending post or video. Unlike many parts of internet law, Section 230 has generally been consistently interpreted and upheld by courts around the country, and the event at Santa Clara had a largely celebratory feel, with the room fairly stocked with supporters of the law like in-house counsel at web companies, internet law academics, and defense-oriented law firm types.

Some interesting points that came up:

Twitter and Yelp get thousands of complaints per month–and most of it is just speech that someone doesn’t like. Twitter GC Alex Macgillivray noted that most of the complaints about about alleged defamation, as opposed to actual defamation. But CDA 230 means that web companies don’t have to jump at every case of alleged defamation, which would paralyze their operations.

And content that is only alleged to be defamation, is often some of the most valuable speech online, noted Macgillivray–consider critical reviews of products or professionals like doctors and lawyers.

A growing trend: pretending that a complaint about the substance of what a user writes is actually a copyright or trademark complaint. “We definitely get this re-casting,” said Yelp GC Laurence Wilson. The typical one is a business owner who doesn’t like his or her reviews, said Wilson. Instead of running into the brick wall of asking for a takedown by saying the review is false–a complaint that Yelo could not evaluate and would not be obligated to respond to–the business owner claims that their intellectual property rights are being violated. “They’ll claim a copyright or trademark interest in their business listing, and say it can’t be used to allow someone to write reviews on them. Obviously, that’s poppycock and not going to fly.”

CDA 230 protects websites from liability for things like defamation complaints, but not intellectual property complaints such as claims that user-generated sites are violating copyrights or trademarks. Some complainers know that an intellectual property complaint will be taken more seriously than another type of complaint, so they’ll try to style almost any kind of gripe as an IP complaint.

Yelp and Twitter seemed to diverge on how they handled international complaints. Yelp GC Wilson told the audience that his company considers gripes from international users “in a completely different framework” and that “it’s much more complicated,” Twitter’s Macgillivray said that Twitter’s response to complainers doesn’t really vary depending on where the user is. “It’s one of the wonderful things about working in Silicon Valley,” he said. “We tell them, we’re a U.S. company, we have CDA 230 here, and you’re welcome to come and try your hand at suing us here.”

The panel was part of a day-long conference that the High Tech Law Institute at Santa Clara University School of Law, which focused entirely on Section 230.