Comments, Reviews, and Trolls: Liability from Online Feedback
Internet users often ignore a wide variety of legal actions they open themselves up to while online. Recently, Steam—an online gaming platform developed by Valve corporation[1]removed all of developer Digital Homicide’s games from its service after the developer subpoenaed Steam for the identities of one-hundred of its users[2]
In a 2016 complaint, filed in the United States District Court for the District of Arizona,[3] James Oliver Romine Jr., one of Digital Homicide’s founders, listed harassment, cyber bullying, stalking, and continual property damage as part of a lengthy list of various criminal claims against the Steam users.[4] The reason behind the lawsuit was that the users had negatively commented on and reviewed the developer’s games in its comments section on Steam, with some going so far as to make violent threats.[5] However, such conduct is usually part and parcel of online “trolling” culture, something so widely recognized on the internet that some have even begun to rank websites based on the amount of “trolls” present on their comment sections.[6] These “trolls” are essentially people that go out of their way to insult others in the comment sections of websites.[7]
But just how far, or short, can online bullying run before it opens one up to lengthy and expensive civil, or even criminal, litigation? The answer may be one of degree.
“Swatting”—a practice whereby rival gamers call in false hostage reports to police in order to draw SWAT teams to the intended victim’s home—is one such obvious example of cyber bullying gone too far.[8] On the other side of the spectrum, legal action has even been brought against users on Yelp for giving businesses a one-star review. [9]
Tort is one area of the law that has begun to take shape in order to draw lines of permissible conduct in the sand concerning how far commenting and bullying can go before one becomes liable in a legal suit. In the case of defamation, for example, liability depends on factors such as whether comments are reasonably understood as being one’s own opinion—a privilege that falls under the First Amendment—or rather as something asserted as a verifiable fact.[10] The distinction turns on whether or not the claim in a comment can be proven false as a factual assertion.[11] This in turn depends on how the comment would be viewed by the reasonable reader, or, in the case of video blogs and channels on YouTube, the reasonable listener.[12]
In the case of bad reviews, as of 2015, twenty-eight states and the District of Columbia have passed laws to discourage action taken against online reviewers.[13] Powerful online entities have gotten involved as well. Yelp, a three-billion-dollar San Francisco company, opened a political office in Washington where it is supported federal legislation to curb action against reviewers that utilize its website.[14] As for the companies providing these online services, federal law already protects websites from being subject to suit due to the actions of their users.[15]
In the realm of criminal law, nasty online reviewers and commenters become liable under cyberharassment laws. Half of the states in the nation contain “cyberbullying” in their general bullying laws, while most states include either “cyberbullying” or “electronic harassment.”[16] Even without laws particular to actions taken on the internet, prosecutors use existing laws available to them in order to translate innovations in online activity into what they view as actionable criminal conduct.[17]
In short, internet users need to be careful with their online conduct when going out of their way to bully or make negative comments concerning the entities or real people they deal with online. As was the case with the internet “trolls” on Steam, game developers such as Digital Homicide may find legitimate causes of action to hold “trolls” accountable for the excessively nasty comments they make that quickly turn into forms of harassment. However, the users of these online platforms are increasingly being defended by powerful companies that primarily conduct their businesses online, such as Valve and Yelp, which typically rely on the happiness and sense of security of their patrons. Meanwhile, traditional and innovative laws alike are being shaped and reshaped in order to address these growing concerns and likely will continue to do so well into the future.
Footnotes
