Amazon is immune to a defamation case waged against it and one of its marketplace platform customers in connection with her purchase – and subsequent review – of an allegedly counterfeit Burberry scarf. That is what a federal appeals court held this week when it upheld an earlier decision from the U.S. District Court for the Middle District of Florida, which tossed out the plaintiffs’ slander suit last year on the basis that the e-commerce giant is shielded by section 230 of the Communications Decency Act. In a newly-issued opinion, a panel for the U.S. Court of Appeals for the Eleventh Circuit agreed with the district court’s findings and affirmed its order granting Amazon’s motion to dismiss with prejudice.
The Background: The case got its start in October 2021 when David McCall and Tatyana Aleshonkova (the “plaintiffs”) – who operate an Amazon storefront called the Wrap Shop – filed suit against Amazon and Amazon customer Angela Zotos after they refused to remove a review that Zotos posted to the Amazon platform in which she “intentionally, maliciously, and without just cause, slandered the plaintiffs’ name, business and reputation.” Zotos’ review read, in part, “This is not authentic Burberry. I have several Burberry scarfs and the tags on this are fake.” The plaintiffs claim that they “provided Amazon, at its request, with evidence of the scarf’s authenticity” as part of their effort to get the review removed, and yet, neither Amazon nor Zotos agreed to take down the review.
The plaintiffs sought Eleventh Circuit intervention on the heels of the district court deciding that section 230 of the Communications Decency Act (“CDA”) bars their defamation claim against Amazon and that a lack of personal jurisdiction over Zotos warrants dismissal of the claim against her.
Section 230 & a Win for Amazon
Siding with Amazon (and Zotos) in its June 13 opinion, the Eleventh Circuit panel held that Amazon falls within the bounds of the protections provided by section 230 of the CDA, which mandates that “[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute defines an “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” Amazon falls within this definition, according to the court, as its website “allows customers to view, purchase, and post reviews online, and therefore, [it] provides computer access by multiple users similar to an online message board or a website exchange system.”
The CDA also requires a claim to be based on content provided by another information content provider, the panel stated, noting that the statute defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” This definition “covers even those who are responsible for the development of content only in part,” according to the appeals court.
The plaintiffs do not dispute that “Zotos wrote the allegedly defamatory review, and thus, functioned as the information content provider,” the court noted. However, they argue that Amazon also acted as an information content provider because its rules govern customer feedback on its marketplace platform, and thus, the CDA’s broad immunity for interactive computer service providers does not shield it from liability for failing to remove Zotos’ review. In a swift rebuke, the court held that this is “exactly the kind of claim that is immunized by the CDA – one that treats Amazon as the publisher of that information.”
Distinguishing the case at hand from the outcome in Fair Housing Council of San Fernando Valley v. Roommates.Com, a case that the plaintiffs cite in support, the court held that “the complaint here alleges that Zotos wrote the review in its entirety, [and that] Amazon did not create or develop the defamatory review even in part – unlike Roommates.com, which curated the allegedly discriminatory dropdown options and required the subscribers to choose one.”
TLDR: “Lawsuits seeking to hold a service provider [like Amazon] liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone, or alter content – are barred,” the Eleventh Circuit stated, citing the Fourth Circuit’s decision in Zeran v. Am. Online, Inc. The appeals court, “therefore, affirm[ed] the dismissal of the claims against Amazon.”
The court similarly dismissed the claims against Zotos – albeit without prejudice – due to the plaintiffs’ failure to establish the “sufficient minimum contacts” prong to exert personal jurisdiction over Zotos, who is not a resident of Florida, the state where the suit was filed. “There are no allegations that Zotos targeted Florida readers [with her review],” the Eleveth Circuit determined, stating that “Zotos posted the review on Amazon, which was accessible in all 50 states.” The allegations that “the review was accessible and accessed in Florida and that [the plaintiffs] resided in Florida are not sufficient to confer personal juris- diction over Zotos,” the court stated, upholding the lower court’s finding and granting Zotos’ motion to dismiss without prejudice.
The case is McCall v. Zotos, 8:21-cv-02411 (M.D. Fla.).
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