Ninth Circuit Criticizes Attempts to Plead Around Section 230–Kimzey v. Yelp

[Note: Venkat represented Yelp in this case but was not involved in the preparation of this post.]

For all of the drama associated with Section 230 jurisprudence this year–including in the Ninth Circuit–it’s easy to forget that Section 230 still works well in simple cases when a plaintiff tries to hold a website liable for third party content. So it’s refreshing to get a straightforward Section 230 case that reaches the expected result. And it’s especially gratifying to see a court recognize–and reject–efforts to plead around Section 230.

The Opinion

Kimzey is a locksmith operating as Redmond Locksmith a/k/a Redmond Mobile Locksmith. “Sarah K” left a negative Yelp review of the business. Kimzey sued Yelp pro se. The district court easily tossed the lawsuit. The Ninth Circuit affirms.

The Ninth Circuit says Yelp provides an interactive computer service and Kimzey seeks to treat Yelp as a publisher/speaker. As a result, the only issue for exploration is whether Yelp partially developed Sarah K’s content. The court struggles to parse ambiguities in Kimzey’s pro se complaint, but the court sees two issues to discuss:

1) “Yelp created the review.” The court says Kimzey never actually alleged that Yelp created the review. Instead, the court thinks Kimzey alleged that “Yelp adopted them from another website and transformed them into its own stylized promotions on Yelp and Google.” (I don’t understand this recapitulation either). Whatever the court meant by that, the court says plaintiffs have to work harder if they want to allege reviews are fake (cites omitted):

threadbare allegations of fabrication of statements are implausible on their face and are insufficient to avoid immunity under the CDA….Were it otherwise, CDA immunity could be avoided simply by reciting a common line that user-generated statements are not what they say they are….It cannot be the case that the CDA and its purpose of promoting the “free exchange of information and ideas over the Internet” could be so casually eviscerated. This is not to say that CDA immunity extends to content created or developed by an interactive computer service; it does not. But the immunity in the CDA is broad enough to require plaintiffs alleging such a theory to state the facts plausibly suggesting the defendant fabricated content under a third party’s identity. Here there are no such facts.

This seems like a helpful passage for defendants using Section 230 to dismiss a complaint alleging fake reviews.

2) Yelp “transformed” the review for its advertising and promotion and “featured a unique star-rating system as the mantlepiece of its creation.” The court says the “transformation of user content” argument “extend the concept of an ‘information content provider’ too far and would render the CDA’s immunity provisions meaningless.” Instead, the plaintiff must allege that the defendant made “a material contribution to the creation or development of content.” This is an unfortunate word choice; the prior opinions are clear that the defendant must materially contribute to what made the content illegal, which is clear from the associated footnote but not clear from a verbatim quote of the sentence.

Despite the minor garbling of the legal standard, as applied to the facts of this case, the court says that Yelp can’t be liable for the star rating:

Even were we convinced that a one-star rating could be understood as defamatory—a premise we do not embrace…the rating system does “absolutely nothing to enhance the defamatory sting of the message” beyond the words offered by the user….We fail to see how Yelp’s rating system, which is based on rating inputs from third parties and which reduces this information into a single, aggregate metric is anything other than user-generated data. Indeed, the star-rating system is best characterized as the kind of “neutral tool[]” operating on “voluntary inputs” that we determined did not amount to content development or creation in Roommates.Com.

Yelp also isn’t liable for any self-promotional benefit it derives from the user review (cites omitted):

To the extent Kimzey’s complaint aims at alleged downstream distribution of the starred review, § 230’s immunity defeats the claim. Nothing in the text of the CDA indicates that immunity turns on how many times an interactive computer service publishes “information provided by another information content provider.” Just as Yelp is immune from liability under the CDA for posting user-generated content on its own website, Yelp is not liable for disseminating the same content in essentially the same format to a search engine, as this action does not change the origin of the third-party content. Simply put, proliferation and dissemination of content does not equal creation or development of content.

Among other benefits, I think this passage provides Section 230 protection for syndication of user content. This isn’t a new proposition (see Prickett v. InfoUSA; Nasser v. WhitePages) but a federal appellate ruling sure helps.

Implications

The opinion is written by Judge McKeown, who dissented in the Roommates.com en banc decision. She uses this opinion to recapture some of ground lost in the majority opinion and consolidate some of the defendants’ gains from the post-Roommates.com jurisprudence. That makes this opinion an important and defense-favorable complement to the Roommates.com ruling.

The opinion has some pointed remarks about efforts to plead around Section 230 (cites omitted):

This case pushes the envelope of creative pleading in an effort to work around § 230…Instead of asserting that Yelp was liable in its well-known capacity as the passive host of a forum for user reviews—a claim without any hope under our precedents, such as Roommates.Com—Kimzey cryptically alleged that Yelp in effect created and developed content….Kimzey apparently hoped to plead around the CDA to advance the same basic argument that the statute plainly bars: that Yelp published user-generated speech that was harmful to Kimzey. We decline to open the door to such artful skirting of the CDA’s safe harbor provision. This case is in some sense a simple matter of a complaint that failed to allege facts sufficient to state a claim that is plausible on its face. But it is also more consequential than that, given congressional recognition that the Internet serves as a “forum for a true diversity of . . . myriad avenues for intellectual activity” and “ha[s] flourished . . . with a minimum of government regulation.” 47 U.S.C. § 230(a)(3)–(4). Kimzey’s effort to circumvent the CDA’s protections through “creative” pleading fails, and the district court did not err in granting Yelp’s motion to dismiss

Amen!

Unfortunately, this ruling doesn’t directly address the Hassell v. Bird workaround, where Kimzey still could scrub Sarah K’s review by getting a default judgment against her. We are still eagerly hoping the California Supreme Court will to hear the Hassell case and plug that hole.

Case citation: Kimzey v. Yelp!, 2016 WL 4729492 (9th Cir. Sept. 12, 2016)