It's really quite stunning how frequently people sue review sites because they're unhappy about reviews of their business. You would hope that the lawyers these upset business owners use would know better -- but all too often the lawyers appear to be totally unfamiliar
with Section 230 of the CDA and
with the basic concept of properly applying liability to the party who actually did the action. And every time this happens, the case gets thrown out on 230 grounds. It's happened yet again, with a dentist having a case against Yelp dismissed
thanks to Section 230. Sometimes we do see some creative lawyering to try to get around Section 230, and this time, beyond the basic defamation claim, the lawyer tried to also claim "deceptive practices" (under NY state law). The problem there is that the law in New York applies to "consumer-oriented statements," and the complaint was about inaccuracies in statements that were meant for small business owners. As Rebecca Tushnet notes
However, the CDA doesn't contemplate protecting Yelp's use of speech as leverage in its business model. Reit alleged that Yelp provided deceptive terms on its website, encouraging both businesses and individual users to believe that the reviews are not manipulated by Yelp. Also, Reit alleged that Yelp's sales force used negative reviews on the site as leads for new ad business, and that sales reps told business owners that, if they paid for ads, the reps would assist in deleting negative reviews. But if a business owner refuses, Yelp would delete positive reviews. Yelp's guide for business owners stated "We remove the guesswork by screening out reviews that are written by less established users. The process is entirely automated to avoid human bias," and yet the system is not entirely automated. This allegedly deceived the public by representing that reviews are ordered, reviewed and removed by computers, and not manipulated by people. Reit referred to class action suits against Yelp of which he is not a member, and did not allege that he was a victim of this conduct.
The General Business Law bars deceptive acts or practices in the conduct of business and false advertising, giving a private right of action to any person who's been injured; a plaintiff need not be a consumer, but must allege consumer-oriented conduct that is materially misleading and that resulted in injury. However, the identified statement by Yelp isn't addressed to individual consumers seeking dentists, but to business owners. "Yelp's statement is not materially misleading to a reasonable consumer seeking dentistry, and is not a deceptive practice." Likewise, deleting postings for the purpose of selling ads would be business conduct, not consumer oriented conduct. Thus, the claim was dismissed.