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September 13, 2010
Yelp Wins 47 USC 230 Dismissal of Dentist's Lawsuit--Reit v. Yelp
By Eric Goldman
Reit v. Yelp!, Inc., 2010 WL 3490167 (N.Y. Sup. Ct. Sept. 2, 2010)
Dr. Glenn Reit is a Manhattan dentist. His Yelp page and website. As of May 2009, the Yelp page had 11 reviews: 10 favorable reviews and 1 negative review from "Michael S." Dr. Reit believes the Michael S. posting was defamatory because it included "statements that his office is 'small,' 'old' and 'smelly,' and 'the equipment is old and dirty.'"
[An aside: these statements do not sound anywhere close to defamatory, and Dr. Reit looks a little thin-skinned for complaining about these statements. He might be interested in the literature showing how some negative reviews can bolster the credibility of positive reviews. See, e.g., this CNN article.]
Dr. Reit alleges that Michael S.'s post caused Dr. Reit to lose 5-11 calls per day. When Dr. Reit complained to Yelp about the review, he claims that Yelp removed all of the positive reviews and kept only Michael S.'s post. Eventually, that post got removed too. Dr. Reit's Yelp's page now has only 2 posts, both made in the past 4 months. Dr. Reit argues that Yelp removed the positive posts as part of Yelp's alleged scheme to get business owners to pay for advertising.
Dr. Reit tried a frontal legal assault against 47 USC 230 by alleging Yelp committed defamation by continuing to publish Michael S's review. For this claim, Yelp should get the 230 immunity for Michael S's review, and it's not even close.
[Another aside: Reit's lawyer is the well-known computer law pioneer Richard Raysman (check out this bizarre Wikipedia entry). I'm a little surprised Raysman frontally assaulted 230; surely he knew the defamation claim against Yelp would fail.]
To get around the obvious 230 immunity, Reit argued that Yelp's decision to remove the positive posts wasn't editorial, it was a "business decision," and this somehow makes Yelp liable for the negative review that remained. Similar arguments about profit-maximizing editorial judgments have been tried without success in several Ripoff Report cases, and the argument fails here as well. Instead, the court (citing the pretty analogous Shiamili case) effectively says that third party content remains third party content even if Yelp publishes reviews as part of a pay-for-play scheme:
The allegedly defamatory content was supplied by a third party information content provider and consisted of a message board posting. That Yelp allegedly uses "bad" posts in its marketing strategy does not change the nature of the posted data. Moreover, Yelp's selection of the posts it maintains on Yelp.com can be considered the selection of material for publication, an action "quintessentially related to a publisher's role"
This case doesn't cite the Ripoff Report cases, but it is consistent with them. As a result, this ruling is an unexpected boost for Ripoff Report's legal defenses.
After efficiently disposing of Yelp's defamation liability, the court addresses Dr. Reit's claim that Yelp committed deceptive business acts under NY state law. Dr. Reit argues that Yelp overclaims that its review sorting is entirely algorithmic and not manipulated by humans. The language cited by Dr. Reit comes out of Yelp's Business Owner Guide. The court says that the NY statutes only cover consumer-oriented conduct, and the Business Owner Guide was aimed at advertising businesses and not consumers.
Because this latter point turns on the NY statutes' specific language, I'm not sure how much this ruling helps Yelp in the other pending lawsuits against Yelp for its alleged pay-for-play business operations (see 1, 2, 3). The most interesting question is why the court sidestepped 230's application to the deceptive conduct statutes. The court simply and opaquely says that 230 "does not contemplate protecting Yelp's usage of [defamatory third party reviews] as leverage in its business model." Although I remain skeptical about 230's immunity for self-promotional advertising advanced by websites, I see that as a more contestable issue than the court treated it here. See, e.g., the Mazur case.
While Yelp avoided liability in this lawsuit, it should scrub its site to ensure it does not claim that Yelp's reviews are bias-free or the sole product of automated algorithms. For example, the complaint alleges that Yelp's guide says "We remove the guesswork by screening out reviews that are written by less established users. The process is entirely automated to avoid human bias." Obviously, the second half of the statement contains a fatal logic flaw; any algorithm intrinsically reflects human biases in its configurations. See my Search Engine Bias paper for more.
One minor procedural note: the court initially granted Dr. Reit a *TRO*. Fortunately, this opinion reflects a change of heart. I can't really imagine what the court was thinking granting a TRO. There are significant free speech and public policy considerations here, so I can't imagine how a meaningful TRO would be either constitutional or a good idea.
One final thought. One of my stock jokes to reporters is that I would never publish a negative consumer review of my dentist because of his/her retribution power, i.e., to dispense immense pain on my next visit. Either Michael S. is an untraceable pseudonym, or he never plans to go back to Dr. Reit, or he is a much bolder man than I am!
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