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Whooping on Yelp

Not that many years ago people would conduct private conversations about their likes and dislikes in dealing with businesses. One person might ask for a recommendation about a restaurant. The other might reply: “Avoid that joint, unless you have a taste for dog food.” And the conversation would end there.

Today we are in a different world. The conversation may never occur. Instead, the satisfied and dissatisfied patrons might simply post a review on Yelp — good, bad or in between. If bad, the owner of the business will regard the message as defamatory — rightly or wrongly. (I am not dealing with any definition of defamation in this Newsletter; that is a huge and different subject.) But there is practically speaking very little the owner can do about a damaging review. The message, no longer private, reaches hundreds if not thousands, present and potential patrons. The right to free speech under the First Amendment will afford not only the author of the message, but also the website on which it is published, extensive protection against liability.

If, for example, the message is posted on Yelp, the owner can attempt, with small chance of success, to persuade Yelp to modify it or to remove it altogether. If Yelp refuses, then the owner will have recourse against the author message, but without the ability to identify, much less to locate, that author.

What to do then? One answer is: “Shoot the messenger.” To translate, to sue Yelp directly. But that strategy will certainly fail.

The federal Communications Decency Act gives virtually absolute protection to “information content providers” – as opposed to “users” of a message board. The provider (such as Yelp) cannot be held liable for defamatory messages placed on its message board. However, if the provider alters the content of the message, then the provider becomes a user of its own message board and maybe exposed to liability.

A recent case decision – Kimzey v. Yelp (September 12, 2016) – explains, with less than perfect clarity, the rules under the statute.

The plaintiff in that case ran a locksmith operation. An unhappy customer posted a message on Yelp claiming she was treated rudely, denied prompt service, and charged too much money. She advised others not to patronize that locksmith.

The locksmith tried to circumvent the statute protecting Yelp. The court had difficulty understanding his legal theories. Apparently the locksmith’s attorney did not provide a written key. In the end the court ruled in favor of Yelp. The court did, clarify, however, how the message board would NOT lose protection under the statute:

  1. By establishing a rating system (commonly a range of five stars) based upon previously received messages;
  2. By linking the message board with search engines such as Google;
  3. By republishing or disseminating messages posted on the message board;
  4. By editing and selecting content within the message.

In short, none of those acts would transform the message board into a “user” or an author of the message. I expect more case decisions on this issue soon.

The court’s explanation raises, in my mind, further questions: At what point does editing and selecting text turn into creation of a new message? Is a rating system an express adoption of a defamatory message?

Make no mistake about it. I like many, many others rely on reviews on Yelp – not to mention websites offering goods or services. Think Amazon. At the same time I am troubled by the loss of patronage suffered by the targeted business owner who lacks effective recourse against the author of the message – even when clearly defamatory.

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