I give a boost to statutes that limit companies from contractually “gagging” their consumers’ opinions. This pernicious industry follow emerged round 15 years in the past. In the end, each state legislatures and Congress banned the follow. The flagship regulation on this space is the Client Evaluation Equity Act, enacted via Congress in 2016. My primer on that law. California enacted a identical regulation, Civil Code 1670.8, informally referred to as the “Yelp Legislation” (as in, it safe shoppers’ rights to put up opinions on Yelp).

1670.8 is a great regulation, however a gaggle of plaintiff legal professionals are weaponizing it via overly tendentious readings of the regulation and quite a lot of TOSes. (A reminder of the omnipresent dangers of constructing non-public rights of motion). Their efforts have not been going well. At this level, the plaintiffs are arguing that their claims belong in state courtroom as a result of their allegations are too susceptible to give a boost to Article III status for federal courtroom. That’s a litigation technique, I suppose.

For the reason that monitor document of futility, it’s unexpected to peer any of those instances achieve any traction in any respect. However the plaintiffs discovered a pass judgement on who gave them sufficient good thing about the doubt to live to tell the tale a movement to push aside.

The plaintiffs are suing Amazon and similar entities for this provision in Amazon’s TOS:

Amazon’s emblems and business get dressed is probably not used…in any way that disparages or discredits Amazon.

There are a couple of issues of this language. First, it’s unnecesary. Amazon may just simply as simply say that the TOS doesn’t grant any trademark licenses to make use of the emblems in any respect, whether or not that’s for disparagement or party. 2d, the time period “use” is ambiguous. Is within the trademark sense or a colloquial sense? If it’s within the trademark sense, then it doesn’t limit shoppers’ opinions in any respect as a result of such opinions don’t “use” the trademark (i.e., the not-as-a-mark doctrine). The courtroom’s overreading is plain from this case:

believe a disgruntled Amazon client who uploads a damaging put up on Instagram disparaging the rate of Amazon’s supply or the sufficiency of its go back insurance policies. The consumer on this hypothetical state of affairs would have “used any Carrier” as that word is used within the Amazon Prerequisites of Use, and thus be probably lined beneath the challenged language if their put up comprises Amazon’s identify or emblem “in [a] way that disparages or discredits Amazon.”

The Instagram put up doesn’t “use” the “trademark” within the trademark sense. Amazon can have worded this provision higher (or deleted it totally), however to an indicator nerd, Amazon’s intent is apparent.

3rd, later within the TOS, Amazon says it “allows consumers to ‘put up opinions, feedback, pictures, movies and different content material’ [“both favorable and unfavorable”] about Amazon or its services….” That is an bizarre provision as a result of shoppers don’t want Amazon’s permission in any respect to write down their opinions; certainly, the CRFA and state regulation equivalents make it transparent that Amazon has no permission to provide. Amazon’s TOS would have benefited from a important reread to consider how plaintiffs’ legal professionals may just minsterpret the contract to assert 1670.8 violations; however I additionally suppose it’s transparent this lawsuit goes to fail sooner or later.

The courtroom rejects Amazon’s movement to push aside, announcing that the trademark use restriction “is—no less than on its face—arguably a contravention of the Yelp Legislation [because] customers are ostensibly required to waive their rights to make sure damaging statements relating to Amazon relating to its items or products and services.” (As I discussed, that is an obtrusive misreading of the supply). The courtroom additionally says Amazon’s permission to write down opinions might battle with the trademark restriction, some other misreading. Thus:

the Courtroom is left with two competing interpretations of the Prerequisites of Use. Neither interpretation is absurd, and each interpretations have give a boost to within the textual content of the related provisions. Due to this fact, at this level, the Courtroom should conclude that the phrases of the Prerequisites of Use are ambiguous and would require additional exegesis via connection with exterior proof, customized and utilization, and different interpretive tactics now not appropriate for choice as a question of regulation on a Rule 12 movement

Amazon makes two last-ditch arguments. First, it claims the Yelp Legislation conflicts with Segment 230. It’s bad for Amazon to mess around with Segment 230 like this, and it doesn’t paintings. The courtroom says “the blanket prohibition on statements that ‘disparage or discredit’ isn’t restricted to statements posted on Amazon’s site,” [FN] and the courtroom thinks “there can be no felony foundation for Segment 230 to immunize Amazon for censoring posts made out of doors its on-line ecosystem.” I’m now not positive this can be a proper recapitulation of Segment 230, however Amazon’s twisting of Segment 230 may be troubling.

[FN: the court says that the statute permits Amazon to engage in content moderation on its site.]

After all, Amazon argues that the First Modification applies right here. The courtroom conclusorily responds: “the First Modification rights of Amazon don’t seem to be implicated via a regulation that prohibits a business entity from contractually proscribing the speech of its consumers in third-party websites.” This can be true, however it merits greater than a unmarried sentence of “research.”

Case Quotation: Ramos v. Amazon.com, Inc., 2024 WL 4882638 (C.D. Cal. Nov. 25, 2024)

BONUS: Klairen v. Amazon.com, Inc., 2024 WL 4881438 (M.D. Pa. Nov. 25, 2024): “The obvious textual content of the CDA does now not determine a personal proper of motion.” [Reminder: it’s unclear if there is a private right of action for violations of 230(d)].