Law in the Internet Society

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StacyMarquezFirstPaper 5 - 27 Jan 2012 - Main.StacyMarquez
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What Remedies Remain for those Rebuffed by Reputation Ratings?

This inquiry seeks to examine how the law recently has been found an improper vehicle to address the grievances of the victims of reputational ratings systems as well as some possible responses that could help alleviate the discomfort experienced by potential plaintiffs as a result of these new rating mechanisms.

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But not why we should give a f*** whether people don't like how other people think about their products, businesses, or hair color? And not why we would consider for an instant substantially betraying our respect for freedom of speech in order to accommodate the feelings of whiners who bring libel actions? Are you being fair to yourself by introducing this as though it were an essay only valuable to people who have already made up their minds that the First Amendment is less important than the hurt feelings of hotel chains? By starting out this way, you pretty much ensure that most readers—including under other circumstances readers like me—won't even bother going on to the next sentence.

A. The 1st Amendment permits any statement in the form of an opinion; ratings websites are constitutional

Ratings websites are constitutional? What? Have we somehow become a society where everything is forbidden that is not allowed, and conduct must be "constitutional" not to be regulated? I think you mean ratings websites are, like almost all other speech, entitled to the fullest possible measure of constitutional protection.

In Browne v. Avvo, Inc., 525 F.Supp.2d 1249 (2007), the plaintiffs primary challenge was to the accuracy and validity of the numerical rating system used by Avvo to compare attorneys. However, the court held that the opinions expressed through the rating system were absolutely protected by the First Amendment and could not serve as the basis for defamation liability. The key issue was whether the challenged statement could reasonably have been interpreted as stating actual facts about the plaintiff. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1998).

This is not an adequate statement of the holding in Hustler v. Falwell. In the first place, the Court unanimously held that the plaintiff's complaint should be dismissed (see below). Second, it reached that conclusion by holding that all state torts fastening liability on words (including "intentional infliction of emotional distress" as well as defamation) must meet the liability standard of constitutional actual malice when invoked by public figures, which requires proof of defamatory factual falsehoods published with actual knowledge of their falsity or with reckless disregard for the likelihood of their falsity. Falwell therefore could not maintain an action, no matter how designated under state law, in a self-evidently parodic context. Had Hustler purported to print as a news item that Jerry Falwell in his youth had genital sexual intercourse with his mother in an outdoor toilet, there would not have been a different factual allegation, only a different context, bearing not on the court's interpretation about whether the truth of the fact was being asserted, but rather on the reader's interpretation. Falwell stands, in your context, for the principle that actual constitutional malice cannot be found in the context of parody, satire, or expression of opinion. Clearly described, it does not provide any support for the larger argument you are making.
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A. The 1st Amendment permits any statement in the form of an opinion; ratings websites are constitutionally protected

 
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The Ninth Circuit developed a three-part test for determining whether a reasonable factfinder could conclude that the offending statement implies an assertion of objective fact: 1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, 2) whether the defendant used figurative or hyperbolic language that negates that impression and 3) whether the statement in question is susceptible of being proved true or false. Partington v. Bugliosi, 56 F.3d 1147, 1153 (1995) (citing Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (1990)).

In these types of situations,

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In Browne v. Avvo, Inc., 525 F.Supp.2d 1249 (2007), the plaintiffs primary challenge was to the accuracy and validity of the numerical rating system used by Avvo to compare attorneys. However, the court held that the opinions expressed through the rating system were absolutely protected by the First Amendment and could not serve as the basis for defamation liability. The key issue was whether the challenged statement could reasonably have been interpreted as stating actual facts about the plaintiff. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1998). Therefore, Falwell stands for the principle that actual malice cannot be found in the context of parody, satire, or even in expression of opinion which was at issue in Avvo.
 
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Which "types of situations"? Is that an "artful" variation on the single word "cases"?
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The Ninth Circuit developed a three-part test for determining whether a reasonable factfinder could conclude that the offending statement implies an assertion of objective fact: 1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, 2) whether the defendant used figurative or hyperbolic language that negates that impression and 3) whether the statement in question is susceptible of being proved true or false. Partington v. Bugliosi, 56 F.3d 1147, 1153 (1995) (citing Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (1990)).
 
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it appears the courts are looking to determine whether a reasonable person would understand that two people looking at the same underlying data could come up with vastly different ratings depending on their subjective views of what is relevant and what is important.
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In these types of reputation contest situations, it appears the courts are grappling with the larger issues of whether a reasonable person would understand that two people looking at the same underlying data could come up with vastly different ratings depending on their subjective views of what is relevant and what is important. Website ratings would only be found liable if the information or language used on the website would lead a reasonable person to believe that the ratings were a statement of actual fact, rather than opinion. However, courts are required to focus in on the more narrow and concrete issues when making summary judgment decisions so the cases turn on the question of how much process to award the plaintiff before sending him away empty-handed. Further, Bose Corp. v. Consumers’ Union of U.S., Inc., 466 U.S. 485 (1949), essentially ensures even if the plaintiff gains something at trial he will still be sent away empty-handed later on. This leaves potential plaintiffs with no practical legal recourse, yet the persistence of cases being brought under similar claims may implicate a need to address the issue in some other manner because these ratings are being formulated through more distant and removed interactions and knowledge than ever before, and are now more widely disseminated and persistent.
 
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I thought they were trying to discover whether there was any basis, however slight, not to dismiss the complaint on constitutional grounds. Factual allegations in complaints are (supposedly) either true or false, which creates a barrier to dismissal (where, at least most of the time, they should be assumed true) and to summary judgment. So these cases almost always arise not on findings vel non of liability, but on the question how much process to award the plaintiff before sending him away empty-handed, with a sharp stick up his rear end, as he deserves. Somewhere along the way you should in addition have mentioned Bose v. Consumers' Union, which pretty much ensures that even if the plaintiff gains something at trial he will still be sent away empty-handed later on, as he still deserves.

Website ratings would only be found liable if the information or language used on the website would lead a reasonable person to believe that the ratings were a statement of actual fact, rather than opinion. This leaves potential plaintiffs with no practical legal recourse, yet the persistence of cases being brought under similar claims may implicate a need to address the issue in some other manner.

Why? That people continue to think, when criticized publicly, that their feelings or business interests are more important than other peoples' freedom of speech does not constitute a reason why we should pay them the slightest attention or divert ourselves by a millimeter from the path of justice.

B. While the ratings websites are not illegal, there may still be some options for government regulations to cabin content and foster standards

*Not illegal?* Have you really taken your ground on the proposition that just because free speech is "not illegal," that doesn't mean we shouldn't use government power to regulate it? Maybe that's law in India, where a large democracy tries to do without any meaningful constitutional protection for freedom of speech. It has nothing in any event to do with the United States of America, or even Missouri.
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B. Options for government regulations to cabin content and foster standards

 In determining a course of action, private organizations or the government would need to take care to preserve the articulated First Amendment rights while balancing the objective of redress. Private systems will likely have less utility because they are too easily manipulated by money and bias. Government regulation can step in, but needs to be carefully crafted to provide a supportive structure that doesn’t abridge the content.
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Or, we could just decide that free speech is what we believe in. Are you absolutely positive that the best way to deal with that point of view is to ignore it?
 

1. Risk of payment/motives will not work in a private feedback system:

- The cardinal error of "feedback systems" as "reputation markets" is that no one in these so-called markets has to bet with real money; all transactions are conducted in an infinitely inflatable currency. If, on the other hand, people had to pay money to create these "opinions" or "feedbacks," only two classes of commentators would predominate: those who had a significant material incentive to boost the rated entity, or those who had a significant monetary or personal motive to harm it. So the votes cast in an actual "market" would be biased, while those cast in a phony market are simply meaningless. See Eben Moglen.

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You can see me, but that won't make me agree with this analysis. I pointed out that the idea that commenting systems are "reputation markets" is stupidly wrong, not that they are in fact markets and would therefore work better if only rich people could participate in them.
 - An example to corroborate this premise can be found in ZL Techs, Inc. v. Gartner, Inc., 709 F.Supp.2d 789 (2010). ZL Techs claimed that Gartners placement of vendors was biased and that purchasing time with a Gartner analyst allowed vendors to obtain information that help it to improve its rating. This understanding caused ZL to take the position that, "When Gartner expresses a favorable opinion of a particular vendor that has paid the company substantial fees, Gartner is not performing an independent analysis but making a self-interested statement about a business partner." Id. The money invested into this reputational feedback system disturbed the ratings, and arguably, diminished the utility of the system as a whole.
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Only if people don't know that Gartner is a whorehouse that always says what it is paid to say, right? In general, human beings understand that others' opinions are biased, arbitrary, crazy, and uninformed. So what?
 

2. Proper role/actions for government may be to construct regulations that foster transferability:

- Private market actors are already doing a fine job of making new ratings information available to the public. In these settings, the government’s role may be most properly confined to facilitating the adoption of uniform standards so that information can be aggregated easily from among a number of different websites, and reputations can be transported from one site to another. See generally Nolan Miller et al., Eliciting Informative Feedback: The Peer-Prediction Model, 51 Mgmt. Sci. 1359 (2005). This will increase the utility of the ratings systems because a true consensus will emerge, and the separate rating engines would not cooperate or collude.

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 - Private market actors are already doing a fine job of making new ratings information available to the public. In these settings, the government’s role may be most properly confined to facilitating the adoption of uniform standards so that information can be aggregated easily from among a number of different websites, and reputations can be transported from one site to another. See generally Nolan Miller et al., Eliciting Informative Feedback: The Peer-Prediction Model, 51 Mgmt. Sci. 1359 (2005). This will increase the utility of the ratings systems because a true consensus will emerge, and the separate rating engines would not cooperate or collude.
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3. Another promising option would be a government-mandated right of reply:

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- Just as Congress enacted 230 of the Communications Decency Act, 47 U.S.C. 230 to avoid chilling internet discussion,
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- Just as Congress enacted 230 of the Communications Decency Act, 47 U.S.C. 230 under the guise of avoiding the chilling of internet discussion, courts are providing immunity against tort suits stemming from unflattering ratings, so long as the defendant offers the poorly rated individual or firm a right of reply similar to eBays. Specifically, in Avvo, the Court placed much significance on the fact that individuals like Browne who believed that false information was disseminated about them had a right of reply -- an ability to explain why they believe they received inappropriate ratings from a website or a complaining consumer. This right of reply is already built into most consumer feedback systems, but to increase potential plaintiffs sense of vindication, the government could mandate that this be a part of every ratings website. This rule permits a vendor to point out possible biases that formed the basis for an unfair rating or blatantly refute the rating and provide countering evidence to support their position, particularly because the majority of figures being rated on these websites do not maintain themselves as public figures, but rather operate private actors deserving of much more protection.
 
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A fact not in evidence. I might just as well say that Congress enacted section 230 in order to take bribes from intermediary businesses while pretending to address hypocritical outrage by some people about other peoples' looking at pornography on the net. If Congress had wanted primarily to avoid chilling Internet discussion, it need not have bothered with the CDA in the first place. As it was, section 230 allowed them to pass their plainly unconstitutional crap about "decency" and "the protection of American families" without incurring the opposition of collectives like Verizon and aristocrat pornographers like Rupert Murdoch, whose bribes they required in order to sustain their positions.

courts are providing immunity against tort suits stemming from unflattering ratings, so long as the defendant offers the poorly rated individual or firm a right of reply similar to eBays. Specifically, in Avvo, the Court placed much significance on the fact that individuals like Browne who believed that false information was disseminated about them had a right of reply -- an ability to explain why they believe they received inappropriate ratings from a website or a complaining consumer. This right of reply is already built into most consumer feedback systems, but to increase potential plaintiffs sense of vindication, the government could mandate that this be a part of every ratings website.

Overruling Miami Herald v. Tornillo? Or just, as here, ignoring its existence?

This rule permits a vendor to point out possible biases that formed the basis for an unfair rating or blatantly refute the rating and provide countering evidence to support their position.

Is this the place to point out that the Supreme Court has been repeatedly clear for two generations now that "wide-open, robust and uninhibited public debate" is inconsistent with using state tort law to impose liablility on speech with respect to businesses and public figures absent a showing of "actual [constitutionally defined] malice"? Or do you think New York Times v. Sullivan is irrelevant?

4. Finally, the government could require that the websites list the particular discrepancies that led them to that rating (like MI currently requires as part of a defamation claim):

- Various privileges have arisen from the protections offered by the First Amendment including the absolute privilege accorded to statements of opinion, which even if made maliciously or insincerely, do not give rise to a libel cause of action. However, Missouri recognizes one exception to this general rule -- the privilege does not apply when the statement of opinion implies the existence of undisclosed defamatory facts. See Castle Rock Remodel, Inc. v. Better Business Bureau of Greater St. Louis, Inc., BL 282687 (2011) (citing Ribaudo v. Bauer, 982 S.W.2d 701, 704 (1998)).

You're completely misleading your reader here. This Castle Rock case you cite is simply a routine appellate affirmance of the dismissal of a defamation complaint. The Court disposes of the appeal on the ground that the plaintiff did not plead a provably false, defamatory statement, and therefore was not entitled to maintain suit. This rule has existed since the sixteenth century, and while the opinion is not particularly thoughtful or elegant, and therefore wouldn't be worth much time or exposure in a classroom, it is certainly not a basis for the insurrection against the First Amendment you're going to claim below it somehow justifies.

The FDIC could issue regulations

Why would the Federal Deposit Insurance Corporation, which ensures savings bank deposits and conducts reconciliations of bank failures, care about whining from hotels and restaurants criticized on the Web?

or Congress could pass legislation to require the same thing that Missouri does, disclosure of all relevant defamatory facts.

That's not what the Missouri case does, and it's not what the Missouri case says Missouri law says. The case says plaintiffs must plead defamation with specificity, and what it does is to send a nasty little business away empty-handed with a sharp stick up its rear end, as usual. It says nothing about anybody else's required disclosures. I cannot find any other evidence that Missouri has the legal rule you say it has.

As to whether "Congress could pass legislation," we'd need to ask about the federal constitutional questions you keep avoiding, not about the Missouri court's view of Missouri common law, even if that were what you say you think it is.

This would be particularly helpful to potential plaintiffs who would feel more accurately portrayed and have a better understanding of the origin of the rating.

No doubt. But if we have previously decided that such people aren't entitled to any help, as a matter of constitutional law, then why would a weak policy argument about peoples' feelings be relevant, let alone significant?

What seems significant to me about this argument is precisely that plaintiffs' feelings are in fact all you have to go on. Surely the weakness of that predicate is apparent?

It would also permit subscribers to make their own opinions based on those facts, instead of relying on the ratings and opinions of the site exclusively.

In general, I am allowed to say what I think, publicly, free of the oppressive regulation of government, regardless of whether I have a factual basis for my opinions, and whether, if I do, I choose to disclose them or keep them to myself. You presumably know, but don't explain to the reader, that this rule is absolute under almost all circumstances, and is protected by the courts as a necessary consequence of the principles of the First Amendment. The overriding weakness of this essay is its failure to identify and deal with the constitutional arguments that militate conclusively against its position. The misreading or misinterpretation of legal material cited is also important to deal with in revision.
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4. Finally, the government could require that the websites list the particular discrepancies that led them to that rating:

 
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- Various privileges have arisen from the protections offered by the First Amendment including the absolute privilege accorded to statements of opinion, which even if made maliciously or insincerely, do not give rise to a libel cause of action because the right to speak freely is absolute under almost all circumstances. The newly proposed Bureau of Consumer Protection could be charged with issuing regulations or Congress could pass legislation that requires disclosure of relevant defamatory facts when the statement of opinion has implied their existence. This would be particularly helpful to potential plaintiffs who would feel more accurately portrayed and have a better understanding of the origin of the rating. It would also permit subscribers to make their own opinions based on those facts, instead of relying on the ratings and opinions of the site exclusively. Further, this additional information is fully aligned with the proposition that underlies the First Amendment because it provides more information and free speech, albeit this time coming from the perspective of those rated, not those rating.
 
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.

Revision 5r5 - 27 Jan 2012 - 01:02:55 - StacyMarquez
Revision 4r4 - 15 Jan 2012 - 19:53:46 - EbenMoglen
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