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.Clients can post reviews of attorneys whose services they have used.Avvo uses this and other information to generate a rating for lawyers, whichis a numerical score from 1.0 (the worst Extreme Caution ) to 10.0 (thebest Superb ).A rated attorney can add certain information to her pro-file after claiming it by using an identification verification system.The right to claim the profile is a classic example of Web 2.0 businessmodels.Attorneys listed on the site ignore the profile at their peril, andthose critical of Avvo s project are put in a double bind by the profile s veryexistence.If they ignore the profile, they effectively allow Avvo and othersthe ability to control this aspect of their online identity.To the extent theytell their side of the story on the site, they are feeding data to Avvo andbuilding its reliability.The aggregator acts like Tom Sawyer, inviting othersto paint the fence by adding to the store of data that increases its author-ity and comprehensiveness.Avvo s rating is difficult to assess because the company does not disclosehow it is calculated, ostensibly because such disclosure would allow lawyersto manipulate and game the rankings in their favor.Avvo does not permitlawyers to pay or purchase ads to help their ratings however, given thesecrecy of its rating algorithm, it is difficult to verify this anti-payola pledge.Partly in order to avoid liability for defamation, Avvo insists that its rank-ings are merely its opinion, and are not factual.In 2007, two Washington attorneys filed a complaint against Avvo forviolation of the state s Consumer Protection Act (CPA), and sought classcertification to include all lawyers rated by Avvo.com.The complaint al-leged that by reporting arbitrary and capricious scores and promotingthem to consumers as mathematical calculations and a reliable assessmentof a lawyer s competence to handle legal matters, Avvo has engaged in.unfair and deceptive acts and practices in violation of the CPA.The plain- Reputation Regulation 119tiffs alleged that the rating system treated lawyers unfairly and deceivedthe consumers who relied on it.Avvo fi led a pretrial motion to dismiss the case, arguing that the com-plaint was insufficient for several reasons.The court granted the motion,ruling that the opinions expressed through the rating system.are ab-solutely protected by the First Amendment. The court posited that the sitedid not deceive consumers because it contains numerous reminders thatthe Avvo rating system is subjective, an opinion rather than fact.Since theratings on the site could not be proven true or false, the court ruled thatAvvo was immune from liability for defamation.Avvo did not disclose itsalgorithm at any time in the suit.The blanket protection the Avvo court would provide for opinions is opento challenge.Internet law expert James Grimmelmann unpacks the lead-ing case on the issue:Milkovich v.Lorain Journal Co., while stating the rule that the Constitu-tion shields opinions, leaves in place two significant exceptions.A state-ment of opinion may imply an underlying fact (the Court s example: Inmy opinion John Jones is a liar. ), and even a statement of opinion may befalse if not honestly held (the Court s example: I think Jones lied, wherethe speaker thought nothing of the sort).The relationship of subjectiveopinion to objective fact.is not simple.44Here, the opinion John Jones is a terrible lawyer implies certain factsabout what Jones did to make him such a rotten attorney.Avvo s disclaimersabout its subjectivity notwithstanding, no one would take the site seri-ously if it did not claim to be based on objective and relevant information.There are examples of challenges to ratings that survived a motion todismiss,45 settled out of court,46 or lost on the merits.47 These cases demon-strate that there is no absolute First Amendment privilege for opinions orratings.Therefore, the threat of costly litigation can be used as leverage topersuade raters to accept regulation.This dynamic may have driven resolu-tion of several lawsuits against physician-rating websites.In the medical field, insurance companies have begun to create black-box evaluation, ranking, and rating systems for doctors.Fearing an unfairtiering of its members, the Washington State Medical Association (WSMA)filed suit against Regence BlueShield, an insurance company that evaluateddoctors using allegedly inaccurate and outdated information.48 The doctorsclaimed that Regence used four-year-old data, small sample sizes, and focused 120 Reputationon cost of claims rather than quality of care.49 The complaint alleged defa-mation and violation of the CPA, among other causes of action.50 After tenmonths of litigation, Regence agreed to settle with the WSMA in an effortto better understand physician concerns, 51 voluntarily withdrawing theSelect Network program
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