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October 26, 2011
Yelp Gets Complete Win in Advertiser "Extortion" Case--Levitt v. Yelp
By Eric Goldman
Levitt v. Yelp Inc., 2011 U.S. Dist. LEXIS 124082 (N.D Cal. Oct. 26, 2011)
A group of advertisers sued Yelp for allegedly extorting them to buy ads from Yelp with the implied/express threat that Yelp would degrade their ranking in Yelp's database if they didn't. In a previous ruling, Judge Patel dismissed the second amended complaint, but her opinion exhibited her characteristic quirkiness.
The case got reassigned to Judge Chen, who was presented with a motion to dismiss a third amended complaint. Deviating in part from Judge Patel's analysis, he reaches the same conclusionthat the complaint should be dismissed--but this time he does so with prejudice, sending the case to the Ninth Circuit (likely) or its grave.
The plaintiffs asserted that Yelp itself wrote negative reviews about the advertisers. In support of this assertion, the plaintiffs claimed that Yelp employees write some reviews, Yelp pays authors for reviews and some reviews don't match the advertisers' customer records. The court says those allegations aren't enough to survive a 12(b)(6) motion to dismiss because they do "not raise more than a mere possibility that Yelp has authored or manipulated content related to Plaintiffs in furtherance of an attempt to 'extort' advertising revenues." The plaintiffs' arguments were too inferential, and other stories plausibly fit the alleged facts.
The plaintiffs' claims that Yelp reorders reviews is preempted by 47 USC 230(c)(1):
Plaintiffs’ allegations of extortion based on Yelp’s alleged manipulation of their review pages – by removing certain reviews and publishing others or changing their order of appearance – falls within the conduct immunized by § 230(c)(1).
Once again, a defense win cites to Roommates.com.
To get around 230, the plaintiffs argued that Yelp assembled a star rating, and the star rating was its own expression, not its users. The court notes this argument was rejected a decade ago in Gentry v. eBay. To get around Gentry, the plaintiffs argued that Yelp improperly monkeyed with reviews to shape the star rating with bad intent (to "extort"/pull cash out of advertisers' pockets).
Judge Chen responds that "§ 230(c)(1) contains no explicit exception for impermissible editorial motive." He contrasts 230(c)(2)'s "good faith" requirement, saying that the absence of a parallel "good faith" requirement in 230(c)(2) means editorial intent is irrelevant to 230(c)(1). [For more on the "good faith" requirement in Section 230(c)(2), see my article on account termination and 230(c)(2).] On this point, he diverged from Judge Patel's analysis, but unlike her, he actually cites a Ripoff Report victory in support of his conclusion. (Still no cite to the Reit v. Yelp ruling).
Making the point that 230(c)(1) does not permit an inquiry into the defendant's motivation, Judge Chen continues:
traditional editorial functions often include subjective judgments informed by political and financial considerations....Determining what motives are permissible and what are not could prove problematic. Indeed, from a policy perspective, permitting litigation and scrutiny motive could result in the “death by ten thousand duck-bites” against which the Ninth Circuit cautioned in interpreting § 230(c)(1)....As illustrated by the case at bar, finding a bad faith exception to immunity under § 230(c)(1) could force Yelp to defend its editorial decisions in the future on a case by case basis and reveal how it decides what to publish and what not to publish. Such exposure could lead Yelp to resist filtering out false/unreliable reviews (as someone could claim an improper motive for its decision), or to immediately remove all negative reviews about which businesses complained (as failure to do so could expose Yelp to a business’s claim that Yelp was strong-arming the business for advertising money).
Yes! That's exactly right, and kudos for the judge for seeing the connection. The beauty of 230(c)(1) is its simplicity. It ends lawsuits cold on a 12(b)(6), and doesn't open the door for a myriad of messy, expensive and time-consuming factual considerations. Having that airtight immunity means websites can make tough editorial decisions without worrying what kind of story those decisions will ultimately tell in court. Contrast the litigation inquiries in 512(c) and contributory/vicarious copyright infringement, where every service provider choice is grist for the plaintiffs, and that pressure leads service providers to follow the rule "if in doubt, take it down."
The judge adds that a lawsuit based on Yelp's marketing representations might not be covered by 230(c)(1). I discuss this issue more in my 230(c)(2) paper. I disagree with the judge's statement. As I explain in my paper, 230(c)(1) can preempt marketing-based claims; plus see cases like Milo v. Martin. Fortunately, it's inconsequential to this lawsuit as the plaintiffs dropped their false advertising claims. Unfortunately, I expect plaintiffs to seize this language (along with similar statements in other rulings) and do lots of research to find shreds of marketing and support material published by a service provider that could be used to support a false advertising claim that's fundamentally based on user-generated content. (But cf. the Woods v. Google ruling, where Judge Fogel put his foot down on that nonsense).
This ruling makes clear that Yelp can manage its database of user reviews however it wants. This is as it should be. However, it doesn't mean that we as consumers will find Yelp trustworthy. Section 230(c)(1) simply means that Yelp has to earn and keep our trust as readers/consumers, which remains an important and ongoing challenge.
UPDATE: Rebecca's comments.
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