US lawyer ranking site raises attorney's hackles
Avvo pushes limits of web immunity
Avvo, the brand-new lawyer-ranking upstart run by some top US legal professionals and scholars, has only had its shingle hanging for a few days, and already faces a possible lawsuit over its core ranking practices.
John Henry Browne, a Seattle-based criminal law attorney, has told Avvo in a letter that he has retained counsel in exploration of a potential lawsuit against the company for the low ranking it gave him when the site launched. [Note: since his letter went out, his ranking has improved somewhat, to 5.2 out of 10.]
The company has stated that it plans to hold a conference call with Browne to discuss his grievances.
Avvo has generated considerable buzz in the online legal services world, both before and after its launch, by raking in roughly $14m in venture capital, assembling a coterie of experienced legal professionals and scholars for its executive committee and board, and offering a service that no other legal directory currently provides: an algorithm-driven ranking system for attorneys.
Avvo gathers information from public sources such as state bar associations, court records and lawyer websites to produce the rankings. Avvo doesn't publish the details on how it distills the information it gathers into a number on a ten-point scale, arguing that it wants to avoid any gaming of the system.
That ranking system could still prove to be the site's downfall, however. In light of a recent 9th Circuit decision, the use of an algorithm to create a ranking for attorneys could remove protections that websites usually enjoy for content arising from third-party sources.
Seattle-based Avvo lies within the 9th Circuit's jurisdiction, and the decision is binding upon the lower courts within that jurisdiction.
The 9th Circuit's decision involved Roommates.com, a site that matches users with roommates or roommate-seekers. The court ruled that Section 230 of the Communications Decency Act - the US law immunizing websites from lawsuits related to the publication of third-party content - did not shield Roommates.com from a housing discrimination suit since the site filtered the content available to users based on the information supplied by users in their profiles.
The court held that the filtering created a "layer of information" that counted as content generated by the site, which in turn removed the site's Section 230 defense. This decision set the bar for Section 230's immunity-stripping provision lower than at any point previous.
Since Avvo uses its own mathematical system to generate attorney rankings, the resulting numbers would most likely constitute content generated by the site, even though the information used to produce the ranking all comes from third-party sources. This would remove Avvo's immunity from suit and open it up to charges of defamation.
Actually proving defamation against Avvo could be more difficult than destroying its immunity, though. The site provides a mechanism whereby lawyers can correct erroneous information, which the site could argue renders the information on its site "true" and shields it from defamation claims.
Interestingly, in a case that is analogous to the Avvo situation, a federal district court in California recently determined that websites didn't have a case against Google for the way it returned search results based on PageRank. The sites, the court said, couldn't claim that a PageRank was ever "wrong," since it was a creation of Google, and not an "independently-discoverable variable." PageRanks don't exist without Google, the court said, and thus Google's PageRank is never incorrect.
Avvo could argue the same thing here: since its ranking is just the product of an algorithm, the results are never wrong, and each individual has a fair shot at getting a positive ranking. Thus, the argument goes, there is nothing defamatory about the ranking itself, since it is just a numerical aggregation of several different elements of a lawyer's public reputation.
The flaw in this argument is that the Google case dealt with search results. Avvo's rankings directly involve attorneys' reputations and potential livelihoods. Some judges - almost always former lawyers - might find that this hits a little too close to home.
But regardless of whether or not the site ever has any kind of judgment entered against it, defending against a heavy flow of lawsuits from pissed-off lawyers will definitely drain the company's resources and threaten its ambitious foray into the competitive world of online legal directories. The loss of Section 230 immunity would almost guarantee that result.
Let's hope the company earmarked some of that $14 mil for a legal defense fund. ®
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