Review sites are commonplace across the web today as Amazon, Yelp, and TripAdvisor allow consumers hear what others have to say about products, restaurants and businesses. A new site called Unvarnished, currently in beta, seeks to offer the same service, but the subjects of review are in fact individual people. Unvarnished trumpets its service, calling itself an “online resource for building, managing and researching professional reputation,” and allows people to anonymously review one another, and respond to those reviews. Site creator Peter Kazanjy explains:

“It’s not about who’s best in bed, but rather about a person’s management style, productivity, integrity and relationships. Professional reputation resides in the brains of all your colleagues and co-workers, and it’s very hard to access that. This is the place for productive conversation about this topic.”

The New York Times Technology Blog lays out the process simply.

“Any member can review any other member, and if someone does not have a profile on the site, you can create one for them without their permission. The person being reviewed has very little control over what is written; they cannot delete a review, but can offer a written response, or perhaps ask their friends to contribute more positive portrayals.”

On the flip side, Unvarnished isn’t exactly drawing rave reviews itself. A quick scan across the web finds ample evidence. TechCrunch calls it a “clean, well-lighted place for defamation.” TGDaily “can’t imagine why anyone in their right minds would sign up for it.” ZDNet wonders how many lawyers are brushing up on the spelling of defamation. Thankfully the Los Angeles Times Technology Blog is already answering that question.

Wilson Sonsini Goodrich & Rosati lawyers Fred Alvarez and Kristen Dumont were asked to voice their thoughts. Alvarez stated:

“Absolutely it is litigation nightmare. The essential question is, ‘Who can I sue?’ Obviously, all the principles of defamation apply to things posted anywhere, including the Web.”

Dumont further added:

“It essentially encourages defamation because it guarantees a forum for venting. If you write something on your personal blog, your comments are less likely to be viewed/disseminated. But this forum is designed, in essence, for taking swipes at folks you don’t like. And it’s smartly leveraging Facebook’s very popular format to do so.”

So let’s examine where the liability could rest if an individual receiving overly critical and seemingly unfounded negative reviews decides to sue?

The Unvarnished site users, first on the list, won’t enjoy any of the immunities granted to the site itself under the law, and thus the standard laws pertaining to defamation and infringement apply. If a user is found to have posted defamatory content, the user will be liable. The anonymous nature of the poster is what will make locating the target near impossible. Having a verified Facebook account in order to sign up can aid in location on the backend, although it’s hard to imagine Unvarnished cooperating in identifying users without a court order.

If the reviewer is actually identified, the First Amendment and state constitutional free-speech protection will undoubtedly come into play in any type of defamation suits. Often, defamation is not protected, but in A.B. v. State of Indiana, A.B., a minor, posted expletive-filled comments on a social networking site, challenging the school’s anti-piercing policy. A juvenile court judge found that the comments constituted criminal harassment, but the Court of Appeals reversed, finding that the speech was protected by the Indiana State Constitution as political speech aimed at the principal’s policies. Would this only apply to those critical of an employer or manager working for a state entity? If so, then a majority of reviewers are unlikely to qualify under this rationale and would be open to liability, if you can identify them of course.

Unvarnished would naturally be the next target, but it could qualify for protection under Section 230 of the Communications Decency Act. This immunizes website from any liability resulting from the publication of information provided by another and usually arises in the context of defamation, unless the website, in whole or in part, creates or develops contested information. A recent 9th Circuit opinion has focused on this element and created uncertainty for social networking sites that may be relying on Section 230 to protect them from claims relating to the content that their users post or create.

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, two fair housing groups sued the website Roommates.com, alleging that the roommate networking service provided violated the Fair Housing Act. The district court found that the website qualified for Section 230 immunity and entered a summary judgment. On appeal, the Ninth Circuit reversed and remanded for a trial on the merits. The court found that the website created or developed information on the site by creating the questions that users answered when creating their profiles, and by channeling or filtering the profiles according to the answers to those questions.

Essentially, the ruling holds that, by channeling information to users and providing search capabilities, Roommates.com added an additional layer of information that it is at least partly responsible for creating or developing. The effects of this new “channeling” test could impact the ability of social networking sites seeking protection under Section 230. It seems this judicial precedent may not align with Congressional intent, and legislative clarification may be on the horizon. Otherwise, many social sites could find themselves open to liability for information posted by users and the result would be a reduction of social networking sites or a limit to the application of what existing sites now provide.

Either way, it’s difficult to see the positive angle if the site remains as currently constructed. Requiring reviewers to register and pass security protocol would be a simple and seemingly responsible way for Unvarnished to proceed towards legitimacy. It is far too easy to imagine the prospective employer who accesses Unvarnished and allows one well-worded negative review to significantly impact the recruiting process. Reputations are built slowly and painstakingly and should not be brought down by the swift keystrokes of a colleague whose contempt for success clouds an otherwise perfectly qualified candidate.