Nemet v. Consumeraffairs.com

Citation: Nemet v. Consumeraffairs.com, 2009 WL 5126224, (4th Cir. Dec. 29, 2009).

Factual Background
Consumeraffairs.com operates a website that allows consumers to comment on the quality of businesses, goods, and services. Nemet Chevrolet, Ltd. (“Nemet”) brought a lawsuit against Consumeraffairs.com over certain postings to the website that Nemet claimed were false and harmful to its reputation. Consumeraffairs.com moved to dismiss the claims citing the safe harbor provision of the Communications Decency Act of 1996 (“CDA”) §230.

Trial Court Proceedings
The District Court for the Eastern District of Virginia granted Consumeraffairs.com’s motion to dismiss with leave to amend and then granted a second motion to dismiss against Nemet’s amended complaint.

Appellate Court Proceedings
In considering Nemet’s appeal, the Court of Appeals for the Fourth Circuit affirmed the judgment of the district court despite Nemet’s argument that Consumeraffairs.com is an information content provider and not eligible for the safe harbor provision of the CDA.

Under the CDA providers and users of an interactive computer service are immune from liability as the publisher or speaker of any information provided through the interactive computer service unless they can be classified as an information content provider. As defined under the statute, an “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

Consumeraffairs.com, which is an admitted interactive computer service, would only be liable for posts made through its site if it were established that Consumeraffairs.com was also an information content provider, and responsible in some way for the creation of the content posted to the website. While there is some ambiguity among the Circuits as to at what point in litigation immunity under the CDA applies for a defendant, precedent is clear in the Fourth Circuit that immunity applies from the filing of the suit, and is not a mere defense to liability.

According to plaintiff’s argument, defendant participated in the generation of content posted on its site by soliciting complaints and steering the complaints into a specific category designed to attract attention by consumer class action lawyers. Plaintiff also alleges that defendant contacted the author of the posts in question to help draft or revise the complaint and to make promises regarding financial recovery by joining a class action lawsuit.

Plaintiff’s main legal support for these propositions is the Ninth Circuit case of Fair Housing Counsel v. Roommates.com, LLC, where Roommates.com was held to be an information content provider because it required users to disclose their sex, family status, and sexual orientation to use its website. This information was then used to match users looking for roommates and generate content containing discriminatory listings.

While the consumeraffairs.com website was similarly capable of hosting discriminatory and defamatory content, its users were not required to disclose such information. All websites that allow user-generated content are capable of hosting unlawful material, however, nothing in the consumeraffairs.com registration or posting processes required a user to disclose inappropriate material. The court was not persuaded by Plaintiff’s argument that the type of website operated by consumeraffairs.com, namely that of comment and often criticism of goods and services, was providing a forum for likely defamatory material.

The court was similarly not persuaded by Plaintiff’s argument that defendant had contacted the posters to ask questions about their complaints, because no evidence was found that asking questions led to changes in a user’s posts, or that defendant had assisted in revising or redrafting complaints, because no evidence was found that that had taken place.

Plaintiff’s final argument was that because it was unable to ascertain the identity of eight of the posters that defendant had fabricated the posts in an attempt to entice other users to make similar complaints. Because the plaintiff could not offer any reasonable proof of this accusation the court ultimately rejected the argument.