Mynutritionstore’s not-so-ingenious theory to evade the Consumer Decency Act

Cross posted from CL&P Blog

By Paul Alan Levy

In a recent series of demands, a purveyor of “nutraceuticals” called mynutritionstore.com threatened to sue Julia Forte over consumer criticisms appearing on her web site 800notes.com, a forum for identification and discussion of telemarketers based on their phone numbers. (The specific dispute is summarized here) Mynutritionstore’s expressed concern was that the comments about it show up in Google searches.

When Forte replied by citing her protection under the Communications Decency Act, 47 U.S.C. § 230, which generally immunizes hosts of discussion sites against suit based on what consumers say on their sites, mynutritionstore’s lawyer, Thomas Georgianna, of the law firm of Horwitz & Cron, had what he no doubt thought was an ingenious response – if he couldn’t sue on the merits, he could sue the anonymous commenters, join the web host as a “necessary party,” seek a preliminary injunction, and thus force the web host to spend money on lawyers, driving up its costs. He apparently hoped that the threat of such expenses would drive Forte to comply with his demands.

Consumer complaint sites like Forte’s serve an important function. For example, when consumers receive telephone calls for which caller ID reveals an unfamiliar number, it is useful to have a source to check to see who it is that is calling, and what other consumers know about that company. And the CDA is a crucial protection for web site operators that provide a forum for consumer commentary, because it protects them against the expense of defending lawsuits that ought to be brought – if at all– against those who make the comments claimed to be defamatory. Georgianna’s theory, if successful, would force web site operators like Forte to shut down because the legal expenses are likely to outstrip any revenues derived from the web site.

Consequently, we are making public our response, sent today. We have explained the many ways this theory doesn’t work – because the web host is immune from suit, she cannot be sued even for an injunction; preliminary injunctions are not granted to prevent defamation; and in any event, there are several reasons to question whether there is anything actionable on 800notes.com. We also warn him that bringing in the web host for the purpose of running up its costs, even though the host cannot be held liable, be constitute abuse of process not to speak of risking an award of fees under the California anti-SLAPP statute.

Georgianna is invited to respond to these concerns here. He might also explain – exactly what does mynutritionstore need to hide? And in sending his demand letter, did he consider that the result might be more attention to the criticisms? My own Google search for mynutritionstore.com did not bring up Forte’s web site among the first page of search results. That may change.