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.
Not sure what's going on in California, but it's been suddenly issuing a bunch of really bad rulings concerning Section 230 of the CDA (the most important law on the internet). As we've explained many times, Section 230 says that online services cannot be held liable for actions of their users (and also, importantly, that if those platforms do decide to moderate content in any way, that doesn't impact their protections from liability). This is massively important for protecting free speech online, because it means that platforms don't have to proactively monitor user behavior out of fear of legal liability and they don't feel the need to over-aggressively take down content to avoid being sued.
Over and over again the courts have interpreted Section 230 quite broadly to protect internet platforms. This has been good for free speech and good for the internet overall (and, yes, good for online companies, which is why some are so against Section 230). But, as we've been noting, Section 230 has been under attack in the past year or so, and all of a sudden courts seem to be chipping away at the protections of Section 230. Last week we wrote about a bad appeals court ruling that said Section 230 did not protect a website from being sued over failing to warn users of potential harm that could come from some users on the site. Then, earlier this week, we wrote about an even worse ruling in San Mateo Superior Court (just a block away from my office...) exempting publicity rights from Section 230.
And now, Eric Goldman points our attention to an even worse ruling coming out of California state's appeals court for the First Appellate district. In this ruling, the court determines that Yelp can be forced to delete reviews that the court found defamatory (though entirely based on a default judgment, where the defendant didn't show up in court). In previous cases most courts have found that even if content is found to be defamatory, a third party website cannot be forced to delete it, because of the pesky First Amendment.
In this case, the court doesn't care. The background of the case involves a lawyer, Dawn Hassell, who sued a former client, Ava Bird, who allegedly posted negative reviews of Hassell's work. Hassell sued, Bird ignored, and the court ruled for Hassell as a default judgment. As part of this it also ordered Yelp to remove the reviews. Yelp protested. The court then twists itself into all kinds of questionable knots to ignore both Section 230 and the First Amendment. The court first questions whether or not Yelp can even make the First Amendment argument, seeing as it's also claiming that it's not the author of the content in question. Of course, that totally misses the point: it's not necessarily just about the content in the review, but also Yelp's First Amendment rights in presenting content on its website.
In order to claim a First Amendment stake in this case, Yelp characterizes itself as a publisher or distributor. But, at other times Yelp portrays itself as more akin to an Internet bulletin board—a host to speakers, but in no way a speaker itself. Of course, Yelp may play different roles depending on the context. However, in this context it appears to us that the removal order does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.
But, uh, the administrator of a forum still has separate First Amendment rights in determining how they present things in their forum. That's kind of how it works. As Eric Goldman notes:
What the hell is an “administrator of the forum,” and what legal consequences attach to that status? We’re not talking about the free speech rights of a janitor with a mop. This case involves a curator of speech–and even if the curator is just “administrating,” telling a curator how to administrate raises significant speech interests that deserve more respect than this court gave it.
The court then suggests that the First Amendment doesn't apply because Yelp has no right to question a court.
To the extent Yelp has ever meant to contend that an injunction requiring Bird to remove defamatory statements from the Internet injuriously affects Yelp, we disagree. Yelp’s claimed interest in maintaining Web site as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment.
Yikes! That of course, ignores the actual issue at play -- especially the fact that the finding of defamation was on default, rather than through an actual adversarial process.
But the really scary part is how the court gets around Section 230. Goldman refers to it as "jujitsu" and that's a pretty apt analogy:
Yelp argues the authority summarized above establishes that the removal order is void. We disagree. The removal order does not violate section 230 because it does not impose any liability on Yelp. In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was awarded damages and injunctive relief against Bird, not Yelp.
Okay... but then it's ordering Yelp to remove the reviews, despite being a non-party. And if Yelp does not remove the reviews, then it's in contempt of court, which means that yes, the court is absolutely applying liability. But, no, says the court, because [reasons].
If an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court.
Got that. It's not liability because it's "a different type of liability." WHAT?!? Where in the law does it say that "a different type of liability" (with no clear definition) is allowed? The court clarifies by muddying the waters some more:
In our opinion, sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content.
This makes no sense at all.
Separately, the court keeps relying on the fact that Yelp itself was not sued by Hassell, and that all other cases involved service providers that were parties to the case. But that leads to ridiculous results:
As we have pointed out, Hassell did not allege any cause of action seeking to hold Yelp liable for Bird’s tort. The removal order simply sought to control the perpetuation of judicially declared defamatory statements. For this reason, Yelp seriously understates the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp has cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider’s Web site.
But under that standard, the court has just offered up a huge hole to avoid Section 230: just don't name the service provider, and then you can force the service provider to take down the content. If that stands, very bad things will happen as a result. As Goldman points out in response to this, the court is simply wrong:
So the court is flat-out wrong. While I believe it’s correct that none of the cases were posed as contempt proceedings, the actions in both Blockowicz and Giordano also came after lower court findings of defamation. And in any case, WTF? Is the court saying that Section 230 preempts a direct lawsuit against a UGC site seeking injunctive relief, but it’s totally OK to reach the same result by not naming the UGC site in the lawsuit and then enforcing an injunction via contempt proceedings?
Goldman goes on to note how this ruling will create all kinds of mischief opportunities:
Step 1: sue the content poster for defamation in California state court. Do not sue the UGC site because (a) they are immune under Section 230, or (b) they might decide to fight substantively.
Step 2: take advantage of loose service of process rules and or otherwise hope the poster doesn’t appear in the case. For example, non-California residents aren’t likely to fight in a California court even if they get notice.
Step 3: get a default judgment finding defamation. If the user does make an appearance, a stipulated judgment with the user could reach the same result.
Step 4: seek an injunction requiring removal by the UGC site. Once the judge accepts the service of process and concludes the defendant didn’t show, the judge will probably do just about whatever the plaintiff asks. With the default judgment, the plaintiff can then use the coercive effect of contempt to force the UGC site to remove the content so long as the UGC site is under California’s jurisdictional reach–which most UGC sites are.
Voila! A right to be forgotten in the US, despite the First Amendment and Section 230.
As an added bonus, in the same lawsuit, the plaintiff can target multiple items of unwanted content by claiming it’s also written by the defendant or someone working in concert with the defendant. For example, I don’t believe it was ever confirmed that Birdzeye and JD are the same person, but consistent with the less-stringent approach deployed by judges when faced with default proceedings, the court treats both reviews as if the author(s) of the opinions was in court. If, in fact, JD is a different person, then Hassell successfully scrubbed JD’s content without ever suing the actual author or serving proper notice on the author. As you can see, there’s a great collateral damage potential here.
Goldman also warns that this ruling may not be easy to overturn. Yelp can (and should) appeal to the state Supreme Court, but there's no guarantee it will take the case. There are legislative solutions, but those are unlikely as well. But for the time being, this ruling is a ticking time bomb. It can and will be abused. We see so many attempts to censor content by abusing copyright law, and now California has given people a playbook for how to abuse defamation law to do the same thing.
A Dallas pet-sitting company had a small problem. HAD. But it approached it badly and now it has a much larger one.
It tried to enforce a "non-disparagement" clause to silence an unhappy customer. Copied nearly word-for-word from what is now known as "KlearGear boilerplate," the clause forbade customers from uttering a discouraging word under pain of whatever Prestigious Pets might come up with (including wholly made-up damages on top of legal fees, etc.), and awarded itself "sole discretion" to determine what words/actions would trigger the clause.
An unhappy couple posted a review to Yelp with some mild criticisms of the company -- the worst of it being that the "independent contractor" the company provided had not taken care of the customer's fish particularly well and that Prestigious Pets was difficult to get ahold of.
First, the company's legal rep sent a letter to the customers disputing every claim made in the Yelp review and informing them that their refusal to discuss the issues with Prestigious Pets "violated the spirit" of its bogus non-disparagement clause.
Then it filed a claim for $6,766 against the couple in small claims court, listing everything from "lost work opportunities" to "libelous and slandurous [sic] harm" to violation of the non-disparagement clause. This action produced completely predictable results. The couple aired their grievances even more publicly as the story of Prestigious Pets' clause and retaliatory legal actions began to make its way from local news stations to nationally-read websites.
The couple retained counsel to file an anti-SLAPP motion against the company's claims. But Prestigious Pets, stung by the backlash to its attempted enforcement of its clause, withdrew its small claims court filing (instantly mooting the anti-SLAPP motion) and filed a million dollar lawsuit instead.
The company claims that the relief in its new lawsuit is justified because its business dried up in the face of the publicity about its lawsuit, and it brought new claims against Robert Duchouquette because he had appeared in media interviews where he objected to having been sued in the first place. But at this point, the Duchouquettes were not only defendants in a lawsuit for a potentially bankrupting amount of damages, but they had to consider the significant up-front expense of having to pay their lawyers for the hourly expense of defending themselves against a SLAPP suit – the small claims suit alone had subjected them to a ten thousand dollar legal bill.
The statement made by the Duchouquettes that seems to most offend the pet sitting company deals with simple facts. The allegations by Prestigious Pets contain phrases never used by the Duchouquettes ("[T]he Duchouquettes have made it an ongoing campaign to tell the world that Prestigious Pets and Kalle almost killed their fish or at least potentially harmed it (without any evidence to support such a claim)...") and indisputable facts: there was excess food on the bottom of the aquarium, the water was cloudy, and overfeeding is almost always bad for fish, no matter what breed.
The couple's motion to dismiss [PDF] attacks Prestigious Pets' use of a non-disparagement clause that gives the company the "right" to severely limit its customers' speech.
Prestigious Pets’ standard contract—which includes a non-disparagement clause—is shockingly one-sided. It strips consumers of their fundamental rights of free speech, arguably going so far as to even bar consumer actions protected by law such as filing a lawsuit in response to egregious wrongdoing by the company. It provides for the recovery of attorneys’ fees—only against the consumer. It sets Prestigious Pets up as the sole judge and jury to determine whether the non-disparagement clause has been violated. Perhaps worst of all, the contract even goes beyond simply barring speech that injures Prestigious Pets, and actually seeks to bar “any action” that in any way—in Prestigious Pets’ sole estimation—harms the company.
What's really bizarre about this entire debacle is that Prestigious Pets tried to distance itself from this non-disparagement clause by claiming it was inserted by "professionals" who assisted with crafting the company's service agreement. This bizarre post-blowup stiffarm attempts to imply the company is somehow blameless, if not entirely powerless to halt the events set in motion by a service agreement the company apparently had no direct input in compiling. Having such a clause in a service agreement is just stupid. Trying to enforce it to shut up critics is suicide. And, as is noted by Levy, Prestigious Pets has already tried to use the clause against another unhappy customer.
There appears to be almost no chance this lawsuit will survive a motion to dismiss. But if anyone's going to learn what needs to be learned from this experience, the anti-SLAPP motion will also need to be granted, along with a fee shift that compensates these customers for enduring a particularly inept defamation suit.
Burned by negative reviews, some health providers are casting their patients' privacy aside and sharing intimate details online as they try to rebut criticism.
In the course of these arguments -- which have spilled out publicly on ratings sites like Yelp -- doctors, dentists, chiropractors and massage therapists, among others, have divulged details of patients' diagnoses, treatments and idiosyncrasies.
One Washington state dentist turned the tables on a patient who blamed him for the loss of a molar: "Due to your clenching and grinding habit, this is not the first molar tooth you have lost due to a fractured root," he wrote. "This tooth is no different."
In California, a chiropractor pushed back against a mother's claims that he misdiagnosed her daughter with scoliosis. "You brought your daughter in for the exam in early March 2014," he wrote. "The exam identified one or more of the signs I mentioned above for scoliosis. I absolutely recommended an x-ray to determine if this condition existed; this x-ray was at no additional cost to you."
And a California dentist scolded a patient who accused him of misdiagnosing her. "I looked very closely at your radiographs and it was obvious that you have cavities and gum disease that your other dentist has overlooked. ... You can live in a world of denial and simply believe what you want to hear from your other dentist or make an educated and informed decision."
Health professionals are adapting to a harsh reality in which consumers rate them on sites like Yelp, Vitals and RateMDs much as they do restaurants, hotels and spas. The vast majority of reviews are positive. But in trying to respond to negative ones, some providers appear to be violating the Health Insurance Portability and Accountability Act, the federal patient privacy law known as HIPAA. The law forbids them from disclosing any patient health information without permission.
Yelp has given ProPublica unprecedented access to its trove of public reviews -- more than 1.7 million in all -- allowing us to search them by keyword. Using a tool developed by the Department of Computer Science and Engineering at the NYU Polytechnic School of Engineering, we identified more than 3,500 one-star reviews (the lowest) in which patients mention privacy or HIPAA. In dozens of instances, responses to complaints about medical care turned into disputes over patient privacy.
The patients affected say they've been doubly injured -- first by poor service or care and then by the disclosure of information they considered private.
The shock of exposure can be effective, prompting patients to back off.
"I posted a negative review" on Yelp, a client of a California dentist wrote in 2013. "After that, she posted a response with details that included my personal dental information. … I removed my review to protect my medical privacy."
The consumer complained to the Office for Civil Rights within the U.S. Department of Health and Human Services, which enforces HIPAA. The office warned the dentist about posting personal information in response to Yelp reviews. It is currently investigating a New York dentist for divulging personal information about a patient who complained about her care, according to a letter reviewed by ProPublica.
The office couldn't say how many complaints it has received in this area because it doesn't track complaints this way. ProPublica has previously reported about the agency's historic inability to analyze its complaints and identify repeat HIPAA violators.
Deven McGraw, the office's deputy director of health information privacy, said health professionals responding to online reviews can speak generally about the way they treat patients but must have permission to discuss individual cases. Just because patients have rated their health provider publicly doesn't give their health provider permission to rate them in return.
"If the complaint is about poor patient care, they can come back and say, 'I provide all of my patients with good patient care' and 'I've been reviewed in other contexts and have good reviews,' " McGraw said. But they can't "take those accusations on individually by the patient."
McGraw pointed to a 2013 case out of California in which a hospital was fined $275,000 for disclosing information about a patient to the media without permission, allegedly in retaliation for the patient complaining to the media about the hospital.
Yelp's senior director of litigation, Aaron Schur, said most reviews of doctors and dentists aren't about the actual health care delivered but rather their office wait, the front office staff, billing procedures or bedside manner. Many health providers are careful and appropriate in responding to online reviews, encouraging patients to contact them offline or apologizing for any perceived slights. Some don't respond at all.
"There's certainly ways to respond to reviews that don't implicate HIPAA," Schur said.
In 2012, University of Utah Health Care in Salt Lake City was the first hospital system in the country to post patient reviews and comments online. The system, which had to overcome doctors' resistance to being rated, found positive comments far outnumbered negative ones.
"If you whitewash comments, if you only put those that are highly positive, the public is very savvy and will consider that to be only advertising," said Thomas Miller, chief medical officer for the University of Utah Hospitals and Clinics.
Unlike Yelp, the University of Utah does not allow comments about a doctor's medical competency, and it does not allow physicians to respond to comments.
In discussing their battles over online reviews, patients said they'd turned to ratings sites for closure and in the hope that their experiences would help others seeking care. Their providers' responses, however, left them with a lingering sense of lost trust.
Angela Grijalva brought her then 12-year-old daughter to Maximize Chiropractic in Sacramento, Calif., a couple years ago for an exam. In a one-star review on Yelp, Grijalva alleged that chiropractor Tim Nicholl led her daughter to "believe she had scoliosis and urgently needed x-rays, which could be performed at her next appointment. … My daughter cried all night and had a tough time concentrating at school."
But it turned out her daughter did not have scoliosis, Grijalva wrote. She encouraged parents to stay away from the office.
Nicholl replied on Yelp, acknowledging that Grijalva's daughter was a patient (a disclosure that is not allowed under HIPAA) and discussing the procedures he performed on her and her condition, though he said he could not disclose specifics of the diagnosis "due to privacy and patient confidentiality."
"The next day you brought your daughter back in for a verbal review of the x-rays and I informed you that the x-rays had identified some issues, but the good news was that your daughter did not have scoliosis, great news!" he recounted. "I proceeded to adjust your daughter and the adjustment went very well, as did the entire appointment; you made no mention of a 'misdiagnosis' or any other concern."
In an interview, Grijalva said Nicholl's response "violated my daughter and her privacy."
"I wouldn't want another parent, another child to go through what my daughter went through: the panic, the stress, the fear," she added.
Nicholl declined a request for comment. "It just doesn't seem like this is worth my time," he said. His practice has mixed reviews on Yelp, but more positive than negative.
A few years ago, Marisa Speed posted a review of North Valley Plastic Surgery in Phoenix after her then–3-year-old son received stitches there for a gash on his chin. "Half-way through the procedure, the doctor seemed flustered with my crying child. ...," she wrote. "At this point the doctor was more upset and he ended up throwing the instruments to the floor. I understand that dealing with kids requires extra effort, but if you don't like to do it, don't even welcome them."
An employee named Chase replied on the business's behalf: "This patient presented in an agitated and uncontrollable state. Despite our best efforts, this patient was screaming, crying, inconsolable, and a danger to both himself and to our staff. As any parent that has raised a young boy knows, they have the strength to cause harm."
Speed and her husband complained to the Office for Civil Rights. "You may wish to remove any specific information about current or former patients from your Web-blog," the Office for Civil Rights wrote in an October 2013 letter to the surgery center.
In an email, a representative of the surgery center declined to comment. "Everyone that was directly involved in the incident no longer works here. The nurse on this case left a year ago, the surgeon in the case retired last month, and the administrator left a few years ago," he wrote.
Reviews of North Valley Plastic Surgery are mixed on Yelp.
Health providers have tried a host of ways to try to combat negative reviews. Some have sued their patients, attracting a torrent of attention but scoring few, if any, legal successes. Others have begged patients to remove their complaints.
Jeffrey Segal, a one-time critic of review sites, now says doctors need to embrace them. Beginning in 2007, Segal's company, Medical Justice, crafted contracts that health providers could give to patients asking them to sign over the copyright to any reviews, which allowed providers to demand that negative ones be removed. But after a lawsuit, Medical Justice stopped recommending the contracts in 2011.
Segal said he has come to believe reviews are valuable and that providers should encourage patients who are satisfied to post positive reviews and should respond -- carefully -- to negative ones.
"For doctors who get bent out of shape to get rid of negative reviews, it's a denominator problem," he said. "If they only have three reviews and two are negative, the denominator is the problem. ... If you can figure out a way to cultivate reviews from hundreds of patients rather than a few patients, the problem is solved."
We've noted how the FCC's latest net neutrality rules do a lot of things right, but they failed to seriously address zero rating or broadband usage caps, opening the door to ISPs violently abusing net neutrality -- just as long as they're relatively clever about it. And plenty of companies have been walking right through that open door. Both Verizon and Comcast for example now exempt their own streaming services from these caps, giving them an unfair leg up in the marketplace. AT&T meanwhile is now using usage caps to force customers to subscribe to TV services if they want to enjoy unlimited data.
In each instance you've got companies using usage caps for clear anti-competitive advantage, while industry-associated think tanks push misleading studies and news outlet editorials claiming that zero rating's a great boon to consumers and innovation alike.
The FCC's net neutrality rules don't ban usage caps or zero rating, unlike rules in Chile, Slovenia, Japan, India, Norway and The Netherlands. The FCC did however state that the agency would examine such practices on a "case by case" basis under the "general conduct" portion of the rules. But so far, that has consisted of closed door meetings and a casual, informal letter sent to a handful of carriers as part of what the FCC says is an "information exercise," not a formal inquiry.
But in a letter sent to FCC Commissioners (pdf) this week, a coalition of companies including Yelp, Vimeo, Foursquare, Kickstarter, Medium, Mozilla and Reddit have urged the agency to launch a more formal -- but also transparent -- probe of ISP behavior on this front:
"Zero rating profoundly affects Internet users' choices. Giving ISPs the power to favor some sites or services over others would let ISPs pick winners and losers online—precisely what the Open Internet rules exist to prevent...Given how many stakeholders participated in the process to make these rules, including nearly 4 million members of the public, it would be unacceptable not to seek and incorporate broad input and expertise at this critical stage."
Given the FCC's decision to ban usage caps at Charter as a merger condition, the agency is clearly aware of the threat zero rating and caps pose to a healthy Internet. It's possible the FCC is waiting for the courts to settle the broadband industry's lawsuit against the FCC, which could gut some or all of the net neutrality rules. But it's also entirely possible that the FCC does nothing. Usage caps are a glorified price hike, and even in its latest more consumer friendly iteration, the FCC has historically been afraid to so much as even acknowledge high prices are a problem in the sector.
Things have been muddied further by T-Mobile's Binge On program, which gives users the illusion of "free data" by setting arbitrary usage caps, then exempting the biggest video services from usage caps. And while many consumers applaud the idea, even T-Mobile's implementation sets a potentially dangerous precedent in that it fails to whitelist smaller video providers and non-profits -- most of which have no idea they're even being discriminated against. There's a contingent at the FCC and elsewhere that believes efforts like this are a positive example of "creative pricing experimentation."
Either way it's increasingly clear that the FCC needs to take some public position on the subject as ISPs continue to test the agency's murky boundaries to the detriment of users and small companies alike. Should the FCC win its court case, pressure will grow exponentially for the FCC to actually put its money where its mouth is -- and put the rules so many people fought for to actual use.
from the or,-how-to-make-one-opinion-REALLY-MATTER dept
An anti-SLAPP win has just been handed down in Nevada, one of the few states with a strong anti-SLAPP law. At the center of the failed defamation lawsuit is (you guessed it) a negative review of a business posted at Yelp.
Pamela Boling (represented by Marc Randazza) hired IQTaxx to prepare her taxes, including the filing of a hardship notice. IQTaxx failed to do so. Boling tried to speak to the company about its failure to file the hardship paperwork, but after several attempts she was routed to a third-party number which informed her that the tax preparer's number was no longer in service.
Boling turned to Yelp and left a review detailing her experience with the company. Her review was headlined "This is MALPRACTICE!" Shortly thereafter, IQTaxx sent a cease-and-desist to Boling over her "exaggerated emotional rant review" -- wording it should have known would be fatal to its claims of defamation. Defamation does not cover exaggerations or emotional rants, but rather false statements purporting to be facts.
The court finds the company has failed to satisfy both prongs of Nevada's anti-SLAPP test. Not only that, but it has failed in pretty much all respects when it comes to pursuing a libel suit.
There is no dispute that Yelp is a well-known public forum. and Defendant has provided evidence that her allegedly defamatory statements were not made with knowledge of their falsity. Plaintiff failed to provide evidence tending to show that Defendant knew her statements were false when she made them. Defendant thus made the statements at issue in good faith under NRS 41.637(4). Defendant proved by a preponderance of the evidence that her statements were on a matter of public interest, in a public forum, and were made without knowledge of their falsity.
As for the second prong -- prevailing on the suit's merits -- the court similarly finds almost nothing to work with.
Plaintiff has failed to meet its burden under NRS 41.660(3)(b). Statements of opinion and rhetorical hyperbole are not actionable, as Supreme Court precedent establishes that "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, 418 US. 323, 339-40 (1974).
In other words, the Supreme Court has said the best defense against speech one doesn't like is more speech, not lawsuits.
The court adds that the context of the disputed assertions also plays a significant part in its interpretation.
Context is vitally important in determining whether a reasonable person is likely to view a statement as one of fact, or one of protected opinion or rhetorical hyperbole. The context of Defendant's statements is Yelp, a well-known online forum for consumer reviews. The Internet is the modern equivalent of the soapbox on the sidewalk, and web sites such as Yelp are the type of public forum that is protected under the First Amendment.
The public has become accustomed to seeing fiery rhetoric on online fora, and courts recognize that this context makes it less likely that a reader will interpret statements published in such places as actionable statements of fact.
The court then notes that IQTaxx's sole claim basically doomed its lawsuit from the start.
Plaintiff only asserts that the statement "This is MALPRACTICE!" is defamatory, meaning that only Defendant's September 11, 2015 Yelp review is properly considered in determining whether Plaintiff has met its burden. The statement "This is MALPRACTICE!" with the term "malpractice" in all capital letters and with an exclamation mark, in the context of a Yelp review, is a protected statement of rhetorical hyperbole that cannot make out a claim for defamation.
Defendant's statements are protected statements of emotional hyperbolic opinion. The average Yelp user would not read the statement "This is MALPRACTICE!" with the central term in all capital letters and with an exclamation mark as a carefully considered legal opinion.
IQTaxx must now pay Boling $1,000 in statutory damages, and the person it tried to sue in shutting up can also go after it for legal fees. The tax preparer has several options available to address the negative review, but chose the one that hurt it the most. Rather than just being known for questionable customer service, the company is now known for suing critics and losing badly.
Late last year, we told you about a worrisome effort by the European Commission to saddle the internet with unnecessary regulations. They had released an online "consultation" which was ostensibly part of the effort to create a "Digital Single Market" (a good idea in the world of a borderless internet), but which appears to have been hijacked by some bureaucrats who saw it as an opportunity to attack big, successful internet companies and saddle them with extra regulations. It's pretty clear from the statements and the questions that the Commission is very much focused on somehow attacking Google and Facebook (and we won't even get into the fact that the people who are looking to regulate the internet couldn't even program a working online survey form properly). However, as we noted, Google and Facebook are big enough that they can handle the hurdles the EU seems intent on putting on them: it's the startups and smaller tech firms that cannot. The end result, then, would actually be to entrench the more dominant players.
We helped created a "survival guide" for those who wished to fill out the (long, arduous) survey, and many of you did. As a follow up to that, via our think tank, the Copia Institute, we've now spearheaded a followup effort, which we've put up on the Don't Wreck The Net site. It's a letter to the EU Commission, signed by a number of internet companies and investors who care deeply about keeping the internet open and competitive. You can see the letter on that site, and it has already been signed by investors such as Union Square Ventures and Homebrew and a bunch of great internet companies, including Reddit, Medium, DuckDuckGo, Patreon, Automattic (Wordpress), Yelp, CloudFlare, Shapeways and more.
Before sending it on to the EU, however, we'd love to get more companies, entrepreneurs, technologists, investors and more signed on. So if you go to the Don't Wreck The Net site, not only can you see the letter we're sending, but also the ability to sign on. If you're signing on as yourself, that's easy. If you're signing on on behalf of your organization, then we'll need to reach back out to you to obtain proof that you have the ability to sign on behalf of that organization. No matter what, please look it over and consider signing on, as it's important for the EU to recognize the consequences of what regulations they may place on the internet for the wider tech and startup ecosystem.
Superior Moving and Storage of Pompano Beach, Florida, has a problem. Or rather, several problems. One problem is that Yelp has issued a warning about its review page, noting that it has seen some suspicious activity ["a number of positive reviews from the same IP address"] that suggest an unethical effort to skew its rating.
Local 10 News viewer Scott Hooton claims he was sued for posting a negative online business review.
The Pompano Beach-based moving company behind the suit claims the statements made online were false and have sued Hooton for damages related to defamation.
"They sued me. Served papers right here on this porch," Hooton said.
The suit is seeking damages of excess of $15,000 for defamation related to what the company calls "false statements" made by Hooton in his online posting.
Where this dollar amount comes from isn't clear. It's not listed in the lawsuit's demands.
However, this sort of thing isn't surprising. Many companies have tried this tactic. Most have been unsuccessful. Then there's this:
"His lawyer offered to settle," Hooton said.
This indicates the company's claims aren't quite as solid as it would like them to be. If your case is strong, you generally don't chase filings with settlement offers. Unless you're doing them in bulk
Superior Moving has filed five libel suits against unhappy customers in the past five months, with three of those coming in the space of three weeks.
The company is likely on unsure footing here, as it has spent much more of its time in the Broward County courthouse as a defendant. Since 1998, Superior Moving has been taken to court 31 times for everything from small claims to unpaid debts/violated contracts to fraud.
Many of the small claims cases are due to damages to belongings, homes and vehicles belonging to customers. As you can probably guess, many of the complaints being called defamatory also deal with the same sort of damages.
But do the lawsuits have any merit? Well, we could ask David S. Weinstein, Local 10's "legal expert…"
"The First Amendment protects free speech, but it protects truthful free speech. You still can't yell 'fire' in a crowded theater if there's no fire in a crowded theater."
Never mind. Here's the extent of the claims made against Hooton.
7. On or about January 2015, Superior and Hooton executed a Guaranteed/Binding Estimate [the "Estimate"] for a residential move.
8. Thereafter, Defendant executed the following documents:
a. An Order for Service;
b. A Uniform Household Goods Bill of Lading and Freight Bill;
c. A Household Goods Descriptive Inventory;
d. A Superior Additional Terms and Conditions Interstate Moves Contract; and
e. A Superior Long Distance Addendum to Contract.
9. Pursuant to the Contract, Superior was ready willing and able to pick up the Defendant's furniture and other items, as outlined on the estimate, however, Defendant Hooton, without cause terminated the contract for the move.
10. Despite the fact that Superior was ready, willing and able to fulfill its contract, the Defendant has been defaming Superior in online postings. Defendant published the following false statements about Superior: "They get you on the hook for a low price without completely understanding the work. Then they apply additional charges until it's unbearable."
11. Each and every one of the above statements is false.
And here are the damages claimed, one of which is "we had to hire a lawyer to file these lawsuits."
12. Superior has been required to retain the undersigned counsel to represent it in this action and is obligated to pay said counsel a reasonable fee for services rendered.
13. As a direct and proximate result of the foregoing false statements, Superior has been damaged.
The claims listed above are similar to those in the other defamation lawsuits, with the only difference being the direct quotes taken from the defendants' Yelp/BBB reviews and complaints. Hooton has already responded to Superior's complaint, denying the allegations and pointing out that he never "executed" the documents Superior said he did. Rather, he backed out of the contract when the add-ons moved the cost well above the original estimate.
Hooton's comments are obviously his opinion of the estimate process, which he viewed as bait-and-switch. It would be a stretch to call his statements defamatory, and even more of stretch to claim they caused recoupable damage.
Other suits may have (slightly) more merit that Hooton's, as other Yelp reviewers were a bit more creative in their expressions of dissatisfaction. The interesting thing is that all the suits target negative reviews at Yelp. These would be the same negative reviews that currently greet people surfing to Superior Moving's Yelp page.
If the intention of the lawsuits was to pressure reviewers to kill their negative Yelp reviews, it hasn't worked. Superior seems to have a valid complaint about Yelp itself, and yet it has made no visible effort to direct its legal efforts towards that company.
"Superior Moving & Storage was a paid advertiser with Yelp for many years. During those paid years, he maintained a "5 Star Rating" while paying substantial fees for advertisement and web presence," Manes said.
"When my client decided to discontinue advertising and maintaining a Yelp Page due to consistent increases in the fees and costs imposed on his business by Yelp, his rating suddenly dropped. Shortly after, Yelp began removing many of his 5 Star reviews stating they had violated Yelp's terms, and only publishing negative reviews."
Of course, this could just be the company's highly-subjective view of the current situation, in which certain normal Yelp actions are viewed as conspiratorial and correlative. Even if Superior's claims are true, it would be a long, expensive fight to prove it. Superior seems to realize this battle isn't worth fighting, but it's applying the same sort of pressure on its critics by filing these lawsuits -- implying an expensive legal battle awaits if the defendants aren't willing to settle.
Companies should be able to defend their reputations, but using the legal system to do it isn't the best tactic. Superior may be concerned that Yelp's review page will scare off potential customers. But acquiring a reputation as a company that will sue people for posting negative reviews can have an equally adverse effect.
Late in 2013, a few like-minded individuals decided Yelp owed them money for all the reviews they had voluntarily written over the years. The class action suit bascially alleged Yelp's machinery was lubricated with the blood of unpaid reviewers. The original filing threw off the shackles of normal, dry legal prose in favor of phrases like "thumbing its nose at workers… and taxing authorities," "dependent on a horde of non-wage-paid reviewers," "system of cult-like rewards and disciplines," and "a 21st-century galley slave ship with pirates banging the drums."
All in all, the original complaint reads more like a screed against content farming than a list of recognizable torts. Somehow, it has managed to survive a venue shift and the ineptitude of the plaintiffs' counsel, as well as a complete dismissal. But only barely. And with the threat of Anti-SLAPP fees looming over it. In the opinion granting the smallest of leeway to the complaining party, the judge first notes that not only are they supposed to state coherent claims, but they're also supposed to explain why they're entitled to relief. The court has some problems with the claims themselves.
Here, each of the three named plaintiffs alleges that he or she “was hired by Yelp, Inc. as a writer and she fulfilled that job description and job functions.” Each plaintiff allegedly was “directed how to write reviews and given other such employee type direction from employer defendant.” Yelp allegedly controlled each plaintiff’s “work schedule and conditions.” Two of the three plaintiffs are alleged to have been “fired” with “no warning [and] a flimsy explanation.”
Clearly a violation of labor laws... except for the part where the plaintiffs wholly misrepresented the actual situation.
A reasonable inference to be drawn from the complaint, and from plaintiffs’ arguments, is plaintiffs use the term “hired” to refer to a process by which any member of the public can sign up for an account on the Yelp website and submit reviews, and the term “fired” to refer to having their accounts involuntarily closed, presumably for conduct that Yelp contends breached its terms of service agreement. A further reasonable inference is that plaintiffs and the putative class members may contribute reviews under circumstances that either cannot be reasonably characterized as performing a service to Yelp at all, or that at most would constitute acts of volunteerism.
As such, the labor law cited by the plaintiffs is inapplicable, since it does not cover voluntary acts, even if said acts are monetized by the defendant. That being said, the judge doesn't completely close the door on this particular claim. He notes that it may be possible (but highly unlikely) that a recognizable labor law claim can be raised from this mess of a lawsuit and has given the plaintiffs 20 days to file an amended complaint.
Yelp asked the court for damages under California's Anti-SLAPP law, claiming the lawsuit was nothing more than an attempt to chill its speech, seeing as the claims themselves were baseless and publishing reviews is (duh) a protected form of speech. The court has some sympathy for this argument, partially because the plaintiffs were unable to respond coherently to Yelp's Anti-SLAPP motion.
Plaintiffs offer a strident argument, marked by ad hominem attacks on counsel, that the anti-SLAPP statute is inapplicable because they merely seek to hold Yelp liable under quasi-contractual theories for non-payment of wages, not for exercising any free speech rights. A plaintiff’s theory of liability, however, is not relevant to the question of whether the claim “arises from” a defendant’s exercise of free speech rights. As alleged, Yelp publishes information— reviews—regarding the services and goods various business establishments offer to the public. Plaintiff’s claims plainly arise from that conduct, which undisputedly involves speech on matters of public interest.
Unfortunately, the ad hominem attack on Yelp that was filed instead of a proper response is buried somewhere in the mess of a docket -- something that has less to do with a venue move and the consolidation of filings, and more to do with the plaintiffs' counsel being mostly incompetent. (A read through other filings makes it clear the counsel humored the plaintiffs' desire to be cast as warriors railing against an unjust system, rather than steer them towards articulable arguments and claims.)
Both before and after the transfer of this action to this district, plaintiffs have filed various pleadings with confusing titles in the captions and/or garbled descriptions and/or incorrect event types in the electronic docket entries. As a result, the court in the Central District issued several orders striking certain of plaintiffs’ submissions. Complaining that plaintiffs’ filings in this district failed to comply with the local rules on notice, and that various ambiguities now exist as to what motions are pending and as to the briefing schedules, defendant seeks “administrative relief” under Local Rule 7-11. Defendant requests an order vacating the current hearing, and postponing at least one of plaintiffs’ motions until after a case management conference has been held.
More problematically, plaintiffs failed to set the hearing in the ECF system, with the result that no briefing schedule appeared in the docket entry. It is counsel’s responsibility to learn to use the ECF system correctly, and he is hereby directed to undertake appropriate steps to ensure that he and/or his office staff can file and docket pleadings in the proper manner.
Whether or not this sort of ineptitude led to the plaintiffs' counsel being disciplined by the State Bar isn't made explicit, but a later motion by the plaintiffs attempted to obtain an injunction against the Bar's proceedings as well as add it (!) as a defendant. This was denied.
Whatever the case, the judge finds both prongs of the Anti-SLAPP test have been met (the second being the failure to state a viable claim), but says it's still too early to consider the question of awarding fees. The plaintiffs have also asked for sanctions to be awarded against Yelp, but the judge notes he's doing most of the work in discerning what it is the plaintiffs are actually seeking.
Plaintiffs seek sanctions against Yelp and its counsel. Although the precise basis of plaintiffs’ complaints and the scope of the relief they seek are difficult to discern from their rambling and invective-filled papers, the gist appears to be a contention that Yelp did not exercise good faith in connection with a court-ordered mediation session, and that it should therefore be placed into “default” status until it funds and participates in a new mediation session, and pays monetary penalties to the court. Plaintiffs have failed to make a persuasive showing that Yelp or its counsel engaged in sanctionable misconduct, or that the relief they seek would be warranted in any event. The motion for sanctions is denied.
The only remaining option for the plaintiffs at this point is to file a coherent set of claims that might have a chance at surviving more than a cursory examination. The plaintiffs may have entered the legal arena with every intention of extracting paychecks for their voluntary efforts, but given this opinion, the likelihood of them losing both the case and their money seems much more probable.
The long-running defamation suit against anonymous Yelp reviewers -- brought by Hadeed Carpet Cleaning -- finally has produced some good news… sort of. Hadeed's lawsuit defines "problematic," seeing as it both threatens anonymous speech and is predicated not on actual defamatory statements, but on the allegations that the reviewers were never actual customers of the business. Hadeed has argued that a review from a non-customer is defamation in and of itself, which obviously contains some very negative implications for free speech -- anonymous or not -- if he succeeds in his legal efforts.
[T]he Virginia Supreme Court issued its ruling (PDF) in favor of Yelp, finding that the company doesn't have to disclose any user information, because the lawsuit shouldn't have been filed in Virginia in the first place.
The court's decision to focus solely on the issue of jurisdiction means that the more important public policy argument—whether the Yelp reviewers have a right to anonymous speech in this case—goes unaddressed.
While it is helpful that the court has made it clear that Virginia entities don't possess subpoena power over non-residents, that's pretty much the extent of the good news for Virginia residents. The other silver lining is that if Hadeed continues to pursue these reviewers, he'll have to do it in California, where he'll need to meet a higher standard if he hopes to obtain any identifying information.
"Although we were hoping the court would rule on both jurisdictional and First Amendment grounds, this is still an important win,” said Paul Levy in a statement. "If Hadeed turns to California courts to learn the identities of its critics, those courts will require it to show evidence to meet the well-accepted First Amendment test for identifying anonymous speakers. And so far, Hadeed has not come close to providing such evidence."
Now, the question remains as to whether Hadeed will continue his unmasking efforts in a less-friendly venue. Considering he doesn't dispute the content of the reviews -- just the legitimacy of the reviewers -- this would seem to be an obstacle not worth surmounting.
[I]n light of Hadeed’s previous public statements, it is hard to understand how it could not go forward in California. It took advantage of the pendency of this litigation to mount a public relations offensive portraying itself as an innocent victim of Yelp reviews, making a variety of strong claims about how seriously its business was harmed by negative reviews and speculating about whether Yelp was an “instrument for defamation.” It managed to manipulate a number of reporters at respectable publications into repeating its accusations as truths. And although some of its legal papers were circumspect in admitting that, based on its reviews of its customer database it could do no more than “wonder” whether the Does whom it sued in this case were really customers, in other places it made the affirmative assertion that there was a sufficient basis in its customer database to assert that the reviewers were, in fact, not customers.