On the Perils of Regulating Content Moderation (Part 2 of 3)

In the first post in this series, I went through the background on CDA 230’s protection for the content moderation decisions of site operators. Today, a story about the implications of adding greater liability in this area — and why exposing sites to liability for their moderation decisions would render unviable most online services that rely on third party content.

From 2007 to 2018 I was general counsel for Avvo, an online resource for people to research legal issues and find lawyers. One of Avvo’s innovations (and the reason it needed a GC from its earliest stages) is that it published  a profile of every lawyer in the country — whether lawyers liked it or not. As those profiles included disciplinary history, Avvo’s rating of the lawyer’s background, and client reviews . . . well, some lawyers didn’t like it.

The week it launched, Avvo was sued in a nationwide class action alleging that Avvo’s editorial rating of attorneys was defamatory. And although that case was thrown out on the pleadings, getting such a result was expensive. In the years that followed, Avvo grew and became more important to consumers and lawyers alike. Despite this, lawyers – often sanctioned lawyers, who disliked the fact that Avvo exposed disciplinary history far more effectively than the websites of the state Bars – tried other vectors of attack. These included consumer fraud, publicity rights, etc. None of these cases survived the pleadings. But pushing back on them wasn’t without cost. These were largely unexplored areas at the intersection of publishing, public records, and commercial speech. Fortunately, Avvo had the resources and was able to aggressively fight back.

But client reviews? For the most part, nobody sued over those. 1

Oh, it wasn’t that every attorney loved their client reviews, or believed that they accurately reflected the services provided. Far from it. For while most reviews ran positive – it turns out people appreciate being gotten out a jam – some, inevitably, did not. It’s a result dictated by the law of large numbers; clients were posting thousands of reviews on Avvo every week. 2

And lawyers certainly threatened to sue Avvo over those reviews. Hundreds and hundreds of times. But CDA 230’s broad and straight-forward language — and its hard-fought litigation history — ensured that the threateners scuttled away, often not even bothering to leave a “SEE YOU IN COURT!” in their wake. 

I sometimes felt like a part-time CDA 230 instructor, educating my fellow members of the bar, one at a time, on the simple brilliance of the 26 words that created the internet.

But what if CDA 230’s protections were hedged? What if Avvo had some obligation to moderate content “reasonably,” or take content down on affidavit or “notice of falsity,” or any of the many other suggested tweaks to the statute?

It would have been game over. 

More on that in the final post in this series.

Notes:

  1. Or, at least they didn’t until very late in Avvo’s run as an independent company, when an attorney tried the angle that California’s unfair trade practices required some sort of judicially-imposed review moderation regime quite at odds with CDA 230. We got the complaint stricken under California’s stellar anti-SLAPP law.
  2. I do recall a single occasion when an attorney – the attorney behind this video, in fact – readily conceded that he’d earned a poor review. Much respect.

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