Yelp Isn’t Liable For User-Submitted Photos Of Businesses–Albert v. Yelp
The last time I blogged about a lawyer who sued Yelp for defamation, I spilled 3,000 words (and shed many tears). Fortunately for my mental health and your reading queue, I’m pleased to report that today’s case has better–and more succinct–news.
The lawyer-plaintiff is Lenore Albert. Her Yelp page. She claims a former employee orchestrated a social media attack on her business, including posting fake disparaging reviews on her Yelp page plus this image (which she claims isn’t clearly demarcated as user content instead of Yelp-sourced content):
Albert also claims that Yelp further screwed up her page when she refused to advertise with it. She sued Yelp for defamation, tortious interference and intentional infliction of emotional distress. The lower court granted Yelp’s anti-SLAPP motion. The appeals court affirmed.
Anti-SLAPP. The first question is whether the user postings are protected public interest material. Citing Wong v. Jing, the court says that user reviews about “a lawyer heavily involved in the foreclosure fallout from the Great Recession” qualify. Further, a “third party’s comments about some other person’s products or services” aren’t commercial speech for anti-SLAPP purposes (which is correct; the statutory exclusion covers advertising).
Substantively, Albert’s defamation claim is preempted by Section 230. The court says: “The case law on this point is conclusive” (amen!!! cites to Zeran, Batzel, Nemet, Hupp, Jones v. Dirty World and Almeida). The court distinguishes Roommates.com because “there is no evidence that Yelp solicits defamatory or misleading reviews. In fact, all evidence is that it tries to keep such reviews off its site, even if (as the present case illustrates) it is not always successful in its quest.” In a footnote, the court says Roommates.com actually helps Yelp because Yelp is like the free-form comment boxes that Roommates.com said qualified for Section 230. The court distinguishes the old Anthony v. Yahoo ruling because, in that case, the plaintiffs alleged Yahoo created fake dating profiles, while Albert didn’t allege Yelp created the fake content. The court boils it down:
section 230 certainly does not immunize third parties who actually write defamatory posts to a website [cite to Bently] but the website itself is unreachable (emphasis added–can I get another amen?!).
The court’s a little vague about how Albert argued that Yelp should drop out of Section 230 because it unfairly downgrades non-advertisers, but the court says that argument doesn’t help per the Levitt case (the court correctly notes the Ninth Circuit opinion only addressed extortion, not defamation, but says it’s persuasive nonetheless). The court also rejects any “encouragement” exception to Section 230, saying “the courts have uniformly rejected website liability based on the idea that a website psychologically encourages defamatory reviews.”
Having boxed in every possible way the plaintiff tried to get around Section 230, the court says she cannot win the defamation claim against Yelp.
Nomenclature note: in a footnote, the judge refers to Section 230 as part of the Telecommunications Act of 1996 rather than the “Communications Decency Act,” because the decency part of the CDA got struck down and most CDA-related litigation now relates to Section 230. It’s a good reminder that 47 USC 230 was actually Section 509 of the Telecommunications Act of 1996, not Section 230 of that act. So it still grates on me when I see otherwise smart people call it “Section 230 of the CDA.”
Intentional Infliction of Emotional Distress. This tort requires outrageous conduct by Yelp, which Albert didn’t allege. The court implies that it might be outrageous if Yelp authored the bogus reviews or intentionally hid positive reviews, but that seems like speculative dicta.
Tortious Interference. Because Yelp didn’t commit any wrongful act, this tort fails.
Opportunity to Amend. Like most plaintiffs about to lose a case, Albert indicates she can make more successful arguments if she just gets a chance to amend the complaint. For example, Albert says she’d like to sue based on Yelp’s own marketing representations, similar to the Demetriades case. The court even says in a footnote that “Yelp’s statements about itself do not receive protection under section 230.” However, California courts don’t allow complaint amendment once the anti-SLAPP process is invoked, so Albert is stuck with her unsuccessful initial complaint.
Indispensible Party. Finally, Albert argued that she needed to keep Yelp in the case so it can effectuate removal of any defamatory content The court rejects this argument because she didn’t make it at the trial court (indeed, her arguments pointed in a contrary direction). The court doesn’t discuss the Hassell v. Bird ruling, which held that Yelp could be forced to remove user content even as a non-party. That would have further reinforced the court’s conclusion, but I’m still hoping the Hassell court’s mistake gets corrected in the courts or the legislature.
While the net result of this opinion–Yelp wins anti-SLAPP dismissal based on Section 230–doesn’t break much new ground doctrinally, it’s still refreshing to see after the Hassell v. Bird trainwreck. Plus, this is a nice opinion both from a substantive and expository standpoint. I like the judge’s writing style, and reading the judge’s bio, I see he’s won awards for humor writing. Plus, he’s been a NHL hockey goal judge*, so he’s not easily intimidated. So for his no-nonsense and lucid opinion plus his eclectic background, I’m awarding the Technology & Marketing Law’s Judge of the Day award to Judge William W. Bedsworth. Kudos!
[* initially I said a referee until a Canadian reader corrected me that there’s a big difference between a referee and a goal judge. Obviously hockey is not my sport.]
Case citation: Lenore Albert v. Yelp, Inc., 2016 WL 3910830 (Cal. App. Ct. July 15, 2016)
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