The online mega-retailer, Amazon.com, recently launched a flurry of lawsuits in Washington state court against people who post fraudulent product reviews on Amazon. Companies that list products for sale on these cites will often pay the posters to post gleaming reviews of their products. Amazon's approach, while not an unheard of practice, is adding a new wrinkle to what was already a fairly novel practice. In the past, retailers like Amazon, and, in fact, Amazon itself, sought to reduce the number of fraudulent reviews appearing on their sites by suing the technology companies that helped facilitate the posting of fraudulent reviews. This time around, Amazon is changing tactics. Amazon is directly suing the individuals who actually write and post the reviews. In the recently filed suits, Amazon alleges that individuals would write five-star reviews about products they never even tried, and plotted with product makers to subvert Amazon's safeguards that are meant to bolster confidence in the accuracy and reliability of the website's reviews. Amazon is suing for unspecified damages and an order forcing the users to stop writing fake reviews.
Amazon has expended great resources to thwart the planting of fake reviews - a practice sometimes called "astroturfing," a reference to the synthetic grass used on sports fields. Companies like Amazon employ computer algorithms and teams of investigators who scour reviews and delete suspicious entries. Often, only people who have paid for a product or service and been verified can post reviews. This tactic has has far reaching consequences for the law, in general, and for the law regulating e-commerce and free speech, in particular.
The first issue that struck me when I learned of Amazon's new practice was to question the notion that a corporation could actually alter the freedom of speech guarantees contained in the 1st Amendment to the federal Constitution. Unless you are testifying under oath or giving a statement to a federal law enforcement official (along with some other, limited examples not worthy of discussion here) you have the legal right to lie. (You might recall that a federal court recently held that Fox News is entitled to lie during its broadcasts. The court held that the lies are protected by the Constitution's 1st Amendment guaranteeing the right to freedom of speech. The 1st Amendment provides equal protection (no pun intended) to untruthful statements as it does to truthful statements. While lying via the means of posting untruthful product reviews online, or in other forms or examples, may be questionable from a moral or ethical standpoint, it otherwise has no bearing on a person's Constitutionally protected free speech guarantees found in the 1st Amendment.
So, you might ask yourself or, preferably, your attorney, just how on Earth does Amazon expect to successfully prevail in the lawsuits which were filed in Washington state? If people are legally permitted to lie then what serves as the basis of a valid theory of recovery against the fraudulent posters? There do not appear to be any sort of "tort" or "tort-like" acts or omissions that would give rise to liability on the part of the posters. It is a confusing scenario. The answer, I suspect, is that the posters do have contractual relationships with Amazon, the violation of which could give rise to legitimate claims against the posters for violating Amazon's terms of service. As has been the case since sometime around the drafting of the Magna Carta, parties (both individuals and entities) are generally free to enter into contractual relationships with other individuals or entities that define each parties' rights and responsibilities and govern what occurs should one or both parties breach the terms of the contract. For now, it remains to be seen whether the recent suits filed by Amazon will prove to be valid means for imposing liability on the fraudulent posters and whether other "alternative" theories of recovery against the posters exist, and whether attorneys for other online retailers, like Amazon, can earn their overpaid keep by developing still newer, more novel theories of recovery.
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Kerry M. Hultquist, Lead Counsel
The Hultquist Law Firm