Reprinted with permission from the April 1, 2018 issue of The Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Imagine this scenario: Your client creates the next big thing, 2018’s “it” product. With your assistance, that client takes the traditional steps to protect and promote the product: signs nondisclosure agreements with suppliers; obtains trademarks to protect the brand; applies for patents to safeguard the concept; and receives required agency approvals. The client exhausts countless resources, and overcomes repeated challenges, to finally bring the product to market. And then, despite those efforts, an anonymous blogger blasts the product as “unresearched.” Or a random “review” website gives it just 2 out of 5 stars.
This is not a strained hypothetical. Unfortunately, it is an increasingly common phenomenon and one that does not fit into a typical legal box, with any time-tested solution. But there are mechanisms to deal with these types of “fake reviews”—which competitors (both direct and indirect) frequently use to steal website traffic, sales and goodwill. Welcome to the murky world of “fake reviews,” and to the best, and most efficient, means of shutting them down.
In the mid-1990s, as the internet expanded into America’s living and conference rooms, and courts pondered the application of traditional torts in an emerging, nontraditional forum, Congress passed the Communications Decency Act (CDA), 47 U.S.C. Section 230. See generally Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) (discussing the origins of Section 230 and the impetus behind it); see also Dimeo v. Max, 433 F. Supp. 2d 523, 531 (E.D. Pa. 2006) (applying the CDA to block a defamation claim against tuckermax.com).
The CDA represented an attempt to keep the internet—described then as a “rapidly developing … forum for … political discourse … cultural development, and … intellectual activity,” 47 U.S.C. Section 230(a)—free from unnecessary restraints, and different from traditional publications and communication methods. To do so, the CDA effectively immunized interactive websites from state tort liability based on comments made, or statements posted, by third-party users of those websites. In practice, this has insulated Amazon, Yelp, YouTube and similar companies from suits stemming from otherwise defamatory “reviews” posted to their websites, as in Kimzey v. Yelp, 836 F.3d 1263, 1265 (9th Cir. 2016). Thus, when a faceless troll sends a particularly vicious—and false—tweet about a product, the manufacturer cannot ordinarily go after Twitter. The CDA stands in the way.
But as the internet envelopes our daily lives, and more commerce moves online, the CDA takes on additional import. More than two decades after its passage, the CDA (combined with the First Amendment, state Anti-SLAPP statutes and other common defenses) has given certain individuals and enterprises a seemingly risk-free means of slandering the competition, and emboldened a new crop of “fake review” websites.
Many major review sites and online retailers attempt to screen or verify user comments, but there are few real barriers to posting illegitimate content. And although independent, authoritative review sites exist and are highly useful, there are now countless fake review sites that mimic their form, but deliberately generate false content and phony ratings or rankings. Typically, these bogus comments and sham websites are created by sly competitors (although there are “fake review” websites that do not make or sell traditional products or services but generate income through web traffic, advertising sales and affiliate relationships). These competitors use fake user names, or third-party domain registrants, to mask their involvement; various search engine optimization (SEO) techniques (attempts to manipulate search engine results and artificially enhance a website’s popularity); and carefully placed links and advertisements to promote their own (or affiliated) products. Together, these tricks can make it difficult to identify the true operator or spot the connection to a competitor. But there are ways to do so, and legal theories to curb this conduct.
The most effective means is Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a), which authorizes trademark-based suits for false association and false advertising (and which, as federal, statutory causes of action, are not subject to the CDA). While aggressive plaintiffs may also add state tort law claims (for defamation, trade libel, unfair competition or even tortious interference), doing so requires them to plead the offending content was created by the defendant, and not simply arranged or re-engineered by the defendant. Courts have previously dismissed cases under the CDA when the defendant was alleged to merely have organized third-party comments into an apparently genuine rating or ranking system, see Kimzey, 836 F.3d at 1266, 1270 (rejecting locksmith’s argument that Yelp’s “star-rating function” transformed it from a protected host entity to an “information content provider”).
If a website’s review disparages the plaintiff’s product and/or trademark, while rerouting users to another product made or affiliated with the website, the Lanham Act allows for federal jurisdiction, and the basis for a rapid-fire injunction proceeding, necessary discovery and a variety of monetary damages. Plaintiffs have used the Lanham Act to force “fake review sites” into taking down defamatory reviews and paying for damages incurred as a result of the lost business and goodwill.
But that only works if the plaintiff can identify and locate the perpetrator behind the “fake reviews” and plausibly allege that the defendant’s conduct amounts to “commercial speech.” The first hurdle is procedural; the second creates a substantive question of fact and law. Because many of these defendants mask their corporate or personal identities (and do not directly register their domains or include physical addresses on their websites), plaintiffs must frequently sue them as “ABC Companies” and then convince the court to allow expedited, third-party discovery into the defendant’s identity (for example, through a subpoena to the domain registrar) and/or move for and effect alternative service (perhaps through the “contact us” email address listed on the website).
To survive any motion to dismiss, the plaintiff must adequately allege that the defendant website—either in its “reviews,” manipulated comments, ratings or rankings, surrounding links and advertisements, or SEO practices—at least proposes some sort of commercial transaction.
Until 2014, a Lanham Act plaintiff—at least in this and most other circuits—also had to allege the defendant was its competitor. See Educational Impact v. Danielson, 2015 U.S. Dist. LEXIS 9467, at *37-38 (D.N.J. Jan. 28, 2015) (outlining the Gordon & Breach test first articulated by the Southern District of New York, which required a plaintiff proceeding under Section 43(a) of the Lanham Act to plead that the defendant is “in commercial competition with the plaintiff”). But the Supreme Court’s decision in Lexmark International v. Static Control Components,134 S. Ct. 1377, 1391 (2014), removed that requirement, at least for purposes of establishing standing. See Asociacion De Laboratorios Clinicos v. Medical Card Systems, 2015 U.S. Dist. LEXIS 176681, at *29-33 (D.P.R. July 24, 2015); Handsome Brook Farm v. Humane Farm Animal Care, 700 F. App’x 251, 256-57 (4th Cir. 2017).
Still, the “Lanham Act has never been applied to stifle criticism of the goods or services of another by one, such as a consumer advocate, who is not engaged in marketing or promoting a competitive product or service,” as in Reybold Group v. Doe, 2017 U.S. Dist. LEXIS 160688 (D. Del. Sept. 29, 2017) (quotations omitted). Thus a plaintiff must at least allege that the defendant’s goal was for customers to do business with them. See Cannella v. Brennan, 2014 U.S. Dist. LEXIS 107944, at *22-24 (E.D. Pa. Aug. 6, 2014) (“watchdog” website was commercial speech because it was “created to disparage plaintiffs and their business,” and defendants’ “goal in posting on the website was to encourage plaintiffs’ customers and potential customers to do business” with defendants instead of the plaintiffs).
If the website is clearly a vehicle to degrade the plaintiff’s product, and links to and promotes a competing version, it should not be difficult to show a commercial purpose. But if the site closely resembles a real consumer review site with no visible connection to a direct competitor, and is merely ranked atop search results and plastered with ads, that may be more challenging. To date, few courts have found that simply using a plaintiff’s mark in SEO techniques (or Google’s AdWords program) amounts to a violation of the Lanham Act. see, e.g., Ascentive v. Opinion, 842 F. Supp. 2d 450, 468 (E.D.N.Y. 2011). There is accordingly no surefire way to go after companies that merely use a plaintiff’s trademark in SEO techniques and unresearched “reviews” to drive hits to their website. But perhaps in the future—as the law recognizes the value of website hits, acknowledges the lucrative nature of these websites (which use popular products and brand names to drive traffic to their sites), and sees each “click” as a commercial transaction—such practices may serve, by themselves, as a consistent basis for Lanham Act liability. Or, perhaps Congress will reevaluate the CDA and demand that interactive websites more closely scrutinize the content posted to their platforms.
Until then, “fake reviews” will continue to crop up. And lawyers and their clients will have to add creative and aggressive strategies for dealing with them to any traditional, pre-market checklist.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.