California Appeals Court Reaffirms Section 230 Protections In Lawsuit Against Yelp For Third-Party Postings

from the should-be-a-foregone-conclusion...-but dept

Section 230 is not completely screwed! A California appeals court decision has upheld Yelp's immunity to defamation claims, running contrary to findings in two other lawsuits recently decided that state. Eric Goldman has the background on the case.

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.

After deciding that posted reviews were not commercial speech (which would not be covered by the state's anti-SLAPP statute) and of public interest (the plaintiff being a lawyer involved in foreclosure proceedings), the court moves on [PDF] to solidly stake out the extensive coverage of Section 230 protections for service providers.

Since Yelp is an internet service provider, it is immunized, under section 230 of the Telecommunications Act of 1996, for defamation contained in any third party reviews on a Yelp page pertaining to a given business. The case law on this point is conclusive…

All doubt is removed when we examine two of the most extreme cases illustrating the immunizing effect of section 230, Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096 (Barnes) and Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119. These cases involved more than simple defamatory third party comments. Rather, in both cases third parties were able to use a website to cast the plaintiff in a decidedly negative false light. In Barnes, the ex-boyfriend of the plaintiff posted revenge porn on the website. The court held the website itself was still immune under section 230. (Barnes, supra, 570 F.3d at p. 1103 [to hold the website responsible would be to treat it like a publisher in contravention of section 230].) And in Carafano, the court held a dating website could not be held responsible for a third party’s virtual impersonation of an actress on the site. Of course, section 230 certainly does not immunize third parties who actually write defamatory posts to a website. (E.g., Bentley Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418 [former tenant could be liable for postings on Yelp about landlord]), but the website itself is unreachable.

The court also dismisses several other accusations by Albert, noting that Yelp has never solicited defamatory/misleading reviews and acts in good faith to remove defamatory or misleading postings when notified. It also points out that Albert's claim that Yelp itself creates misleading/defamatory reviews is not supported by any available evidence.

The plaintiff has asked for the opportunity to amend her complaint (not a bad idea, considering every allegation was rebuffed), but the court points out that the anti-SLAPP statute would be completely useless if complainants were allowed to rewrite their pleadings in light of a court's decision.

As this court recently pointed out, when a complaint is attacked by an anti-SLAPP motion, it cannot be amended so as to add or omit facts that would take the claim out of the protection of the anti-SLAPP statute. In the instant case, the plaintiff sued the ubiquitous business review internet service Yelp, alleging three causes of action which are unmeritorious. On appeal she posits she might be able to amend to allege other causes of action, at least two of which, unfair competition and false advertising, might arguably have merit given the Second District’s recent decision in Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294 (Demetriades) [suit based on Yelp’s statements about itself].) But whether they have merit cannot be reached in this case. Given the rule against amendments to add or omit facts in anti-SLAPP cases, we must affirm the judgment based on the three causes of action actually alleged.

While the decision does affirm what's already assumed about Section 230 protections, it's good to see these protections reaffirmed -- especially given recent highly-questionable decisions emanating from that area of the country. Yelp will recover the costs of its appeal, and if Albert still has money to blow, she's welcome to sue the people who posted the negative material, rather than the website hosting it.


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  • icon
    TechDescartes (profile), 19 Jul 2016 @ 10:06pm

    Again With Feeling

    While the decision does affirm what's already assumed about Section 230 protections, it's good to see these protections reaffirmed -- especially given recent highly-questionable decisions emanating from that area of the country.
    If you're referring to Internet Brands again, the Ninth Circuit was asked a very narrow question in that case. They got it right. Lest you think I favor the plaintiff, I will predict again that the case will get tossed. But it won't be at the Ninth Circuit because Section 230 is irrelevant on the facts alleged.

    The problem is that the defendant relied solely on Section 230 in the motion to dismiss. They should have given the Court a second reason: lack of any special relationship giving rise to the duty to warn under California law. In fact, Judge Clifton practically screams to the world the problem with the plaintiff's case on page 11 of his opinion: "The duty to warn allegedly imposed by California law would not require Internet Brands to remove any user content or otherwise affect how it publishes or monitors such content." There is no special relationship between a website and run-of-the-mill users, so no duty to warn under California law. But, the Court's hands were tied.

    The right strategy now would be to go back to the district court and file a new motion to dismiss for lack of a special relationship. So what did Internet Brands choose to do? File for an extension of time to request an en banc hearing.

    Like I said, the case ultimately will get tossed. Eventually.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2016 @ 5:06am

    Interesting ... how does this play with Yelp's recent spat concerning one star posts stating how much they like a certain pizza joint, which gives them a discount for the one star review because yelp screwed them over.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2016 @ 10:12am

    I am old enough to recognize a monster when I see one and I'm afraid section 230 is too broad, takes away whatever it gives. One day Congress will have to take a look at what's wrong. In this case though immunity was deserved.

    reply to this | link to this | view in chronology ]

  • identicon
    Pending Federal Lawsuit Against Yelp, 4 Aug 2016 @ 12:55pm

    Kimzey v. Yelp Inc. - Extortion Libel - Date set 2 Sept 2016

    Federal Court of Appeals for the 9th Circuit
    San Francisco / Seattle
    WA State has ruled Anti- SLAPP unconstitutional.
    The 1996 Communications Decency Act Section 230' is obsolete.
    It was passed to help the Internet grow, unimpeded by lawsuits
    at a time virtually no one new what the Internet was.
    The 'CDA section 230' inadvertently made, False speech / Libel, legal.
    It contradicts existing laws.
    It only exists in the US, it's an embarrassment to US law.
    A documentary has been made about Yelp's use of the 'CDA 230'
    to extort money from thousands of businesses nationwide.

    reply to this | link to this | view in chronology ]

  • identicon
    Pending Federal Lawsuit Against Yelp, 5 Aug 2016 @ 9:26pm

    Kimzey v. Yelp Inc. - Extortion Libel - Date set 2 Sept 2016

    Federal Court of Appeals for the 9th Circuit
    San Francisco / Seattle
    WA State has ruled Anti- SLAPP unconstitutional.
    The 1996 Communications Decency Act Section 230' is obsolete.
    It was passed to help the Internet grow, unimpeded by lawsuits
    at a time virtually no one new what the Internet was.
    The 'CDA section 230' inadvertently made, False speech / Libel, legal.
    It contradicts existing laws.
    It only exists in the US, it's an embarrassment to US law.
    A documentary has been made about Yelp's use of the 'CDA 230'
    to extort money from thousands of businesses nationwide.

    reply to this | link to this | view in chronology ]

  • identicon
    Douglas Kimzey / Plaintiff Appellant Pro Se, 16 Sep 2016 @ 7:05pm

    Kimzey v. Yelp Inc.

    Kimzey v. Yelp Inc. - Extortion / Libel / False Reviews
    by Douglas Kimzey / Plaintiff Appellant Pro Se.
    The reviewer 'Sarah K' is an alias, was not a customer, and has no recipt as stated. Yelp added our business name to a false libelous defaming review and then posted that together with a one star rating next to our paid advertising on Google, because we refused to pay $300.00 per month. Yelp manipulates content based on weather a business pays them the money they ask for.
    Yelp is a modern day extortion racket.
    If a business is rated 5 stars it is very likely they are paying Yelp monthly. If the business is rated one star they are not paying. The problem is that Yelp publishes their known false content on Google's business directory, next to the business owners business listing or in this case our paid advertising.
    Google does not 'Index' or take Yelp's content, Yelp publishes this false content on Google as a shock value promotional gimmick to drive traffic to the Yelp website.
    We were paying Google $1,000.00 per month for advertising. The false one star rating Yelp posted negated our paid advertising on Google.
    Yelp's false content has appeared on Google continueously for 4 years and still appears. What Google doesn't realize is that we cancelled our advertising program 2 years ago because of Yelp's false libelous review and phony rating.
    Yelp calls it 'freedom of speech', however business owners across the US call it libel and extortion. The FTC has received over 2000 complaints from business owners nationwide against Yelp for extortion unfair business practice and false reviews.
    Read the lawsuit Kimzey v. Yelp Inc. - Opening Brief (on Google) and see the exhibits.
    Redmond Locksmith / Redmond Mobile Locksmith has been in business for over 25 years on Seattle's Eastside and has no customer complaints.
    Watch the soon to be released documentary 'Billion Dollar Bully'.

    reply to this | link to this | view in chronology ]

  • identicon
    Douglas Kimzey / Plaintiff Appellant Pro Se, 21 Sep 2016 @ 11:32am

    Yelp Sells Five Star Ratings

    Yelp's False Reviews Ruled - protected speech by
    9th Circuit Appeals Court / San Francisco

    Kimzey v. Yelp Inc. - Extortion / Libel / False Reviews
    by Douglas Kimzey / Plaintiff Appellant Pro Se

    In a recent ruling on 12 Sept 2016, the 9th Federal Appeals Court says Yelp is protected under an obsolete 1996 Internet law called the "CDA section 230"
    for false reviews and false one star ratings. *
    In a recent case Kimzey v. Yelp Inc. (12 Sept 2016 )
    The reviewer 'Sarah K' is an alias, and was not a customer. Yelp published the false review and one star rating on Google, next to Redmond Mobile Locksmiths paid advertising on Google, after refusal to pay $300.00 per month to Yelp for 'advertising'.
    Yelp manipulates content based on weather a business pays them the money they ask for.
    "Yelp is a modern day extortion racket"
    If a business is rated 5 stars it is very likely they are paying Yelp monthly. If the business is rated one star they are not paying.
    The problem is that Yelp publishes their known false content on Google's business directory next to the business owners business listing, or in this case our paid advertising.
    Google does not 'Index' or take Yelp's content. (Ref: case documents.)
    Yelp publishes this false content on Google as a shock value promotional gimmick to drive traffic to the Yelp website.
    We were paying Google $1,000.00 per month for advertising. The false one star rating Yelp posted negated our paid advertising on Google.
    Yelp's false content has appeared on Google continuously for 4 years and still appears.
    What Google doesn't realize is that we cancelled our advertising program 2 years ago because of Yelp's false libelous review and phony rating.
    Yelp calls it 'freedom of speech', however business owners across the US call it libel and extortion.
    The FTC has received over 2000 complaints from business owners nationwide against Yelp for extortion unfair business practice and false reviews.
    Read the lawsuit Kimzey v. Yelp Inc. - Opening Brief (on Google).
    Redmond Locksmith / Redmond Mobile Locksmith has been in business for over 25 years on Seattle's Eastside and has no customer complaints.
    Watch the soon to be released documentary 'Billion Dollar Bully'.

    * Communications Decency Act - Passed by congress in 1996 to help the newly created Internet grow unencumbered by lawsuits, unintentionally protected false, libelous, defaming speech.
    Although obsolete and no longer applicable is still being upheld by the Federal Courts.

    reply to this | link to this | view in chronology ]


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