Yelp Defeats Businesses’ “Right to Be Forgotten” Claims—Spiegelman v. Yelp
The plaintiffs sued Yelp for using their business information, including their names, photographs and likenesses, without permission. Though the opinion doesn’t expressly state it, it appears these plaintiffs were seeking to get delisted from Yelp’s databases, which is why I’m calling this a right to be forgotten-style case. Their removal tools of choice were California’s constitutional privacy protection and publicity rights. Yelp successfully defended using California’s anti-SLAPP law.
The court says Yelp’s website constitutes a public forum (but only in the anti-SLAPP sense, not the state action sense, a point made in the uncited Prager U v. Google case). Furthermore, “[Yelp’s] reviews indisputably contribute to the public debate and help consumers make informed decisions about where they should spend their money. Thus, while some of the content on Defendant’s hosted pages consists of unprotected business information (e.g. address, business name, phone number) and photos, much of Defendant’s activity relates to issues of public concern….Plaintiffs’ decisions to participate in the free market under organized corporate forms and advertise themselves in various media supports the conclusion that Defendant’s activity relates to a public issue.”
The anti-SLAPP law’s exception for commercial speech did not apply because it’s limited to ad copy; nor did Yelp use the plaintiffs’ business information for advertisements for itself. The anti-SLAPP law’s exception for public interest litigation didn’t apply because the plaintiffs were businesses, not consumers, and the net effect of their litigation would harm consumers by depriving them of valuable consumer reviews.
Once the burden shifted to them per the anti-SLAPP rules, the plaintiffs could not satisfy their pleading burden. The fact that Yelp ran ads on business listing pages did not constitute a publicity rights violation of the plaintiffs’ business information displayed on the page. Cite to Cross v. Facebook. The plaintiffs’ privacy rights failed because their business names are public records and they don’t have privacy interests in photos and other business information they posted to Yelp’s site. [The court wasn’t clear about exactly what it meant by this statement.] Cite to Moreno v. Hanford Sentinel.
It was always clear that Yelp would win this case eventually. Of course businesses can’t block consumer reviews of them by using publicity rights to control their business listings. FWIW, trademark law doesn’t create a veto power over listings in consumer reviews, either; and this case brought to mind the Habush v. Cannon case saying business owners couldn’t use publicity rights to stop purchases of their names as advertising keywords. Still, it was a little interesting to see Yelp win on anti-SLAPP grounds. Writ large, unquestionable the businesses were trying to suppress socially beneficial speech. However, the court had to recognize this point generally, without reference to any specific content items. Fortunately, the court endorsed the important societal-wide functions performed by consumer review sites.
For an interesting contraposition, see PCS v. Angie’s List, where the plaintiff unsuccessfully sought to force Angie’s List to maintain a business profile page (and associated reviews) against Angie’s List editorial decision to remove it. This is a microcosm of the broader debates about Section 230: one camp wants the power to force removal; another camp wants must-carry obligations; and no one likes the editorial publisher making its own decision.
Case citation: Spiegelman v. Yelp, Inc., LASC Case No. 18STCV05378 (Cal. Superior Ct. Feb. 5, 2020)