This is a guest post by Internet Attorney Richard B. Newman which shares with us the status of the most recent lawsuit brought against Yelp alleging manipulation of reviews. Because the cases are being brought under the Communications Decency Act, the outcome affects bloggers even if they never use Yelp because the outcome sets precedents for the application of the Communications Decency Act of 1996.
In June 2009 I wrote How to Get Your Free Listing at Yelp and I updated that post in February 2010 and wrote Why We No Longer Recommend Yelp to Businesses because of repeated accusations that Yelp deletes positive reviews and/or adds negative reviews to get businesses to buy advertising with them.
The distinctive nature of the Internet has played a critical role in cases that have addressed the level of First Amendment protection to be applied to the medium. Earlier this month, the U.S. District Court for the Northern District of California ruled that the Communications Decency Act Immunity for Publisher’s protection for interactive computer services against claims that seek to treat them as the publisher or speaker of third-party, user-generated content, is not dependent upon the motive underlying the services’ performance of traditional editorial functions.
The ruling was issued in conjunction with a lawsuit involving allegations that Yelp, an online review service, knowingly manipulates user-generated reviews and rankings on its service to drive its advertising sales.
Specifically, the complaint alleged that Yelp was liable for extortion and other wrongs on several grounds, including;
- creation of negative business reviews through its employees and other paid individuals acting on its behalf;
- manipulation of third-party reviews, by highlighting negative reviews for customers who did not sign up for its paid advertising service; and
- manipulation of third-party reviews to drive down its business rankings, which Yelp, rather than third-parties, creates.
The court disposed of the claim alleging that Yelp created negative reviews based upon insufficient allegations. As it pertains to Yelp’s alleged manipulation of user-generated content, the court concluded the claims were barred under the Communications Decency Act.
The Communications Decency Act provides that no provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider. This provision has been interpreted quite broadly by many courts. Any activity that can be boiled down to deciding whether to exclude material that third-parties seek to post online is essentially immune.
The plaintiff alleged that this lawsuit involved content created by Yelp, a star rating at the top of each business’ review page, and that the Communications Decency Act did not apply.
The court disagreed, reasoning that linking the Communication Decency Act’s publisher immunity provision to a service’s motives would ultimately result in the “death by ten thousand duck-bites” and that such a bad faith exception could force service providers to defend waves of litigation involving editorial decisions. Such an interpretation would contravene the purpose of the statute, the court said.
The Communications Decency Act immunized Yelp from these claims even if it performed traditional editorial functions, such as choosing which user-generated content to delete, with wrongful motives, such as trying to drive down a business’ ranking to encourage them to sign-up for paid services.
Although the case was dismissed and other cases interpreting the Communications Decency Act have not established an intent-based exception to immunity, the court did make it clear that the Communications Decency Act would not protect Yelp from a lawsuit alleging that it “deceptively represented its rankings as user-generated and neutral.” Interestingly, this ruling differs from one issued in another lawsuit involving Yelp earlier this year, wherein a different judge concluded that Yelp’s bad-faith intent in manipulating user reviews fell outside the traditional editorial functions protected by the Communications Decency Act.
Traditionally, there are narrow exceptions to the broad immunity granted to service providers. A website owner may lose CDA immunity if it takes an active role in editing unlawful content. However, this recent ruling indicates that while the performance of editorial functions includes subjective judgements – determining which motives are permissible could prove problematic – exposing service providers to potential litigation about those motives could chill online speech and contravene the Communication Decency’s Act purpose.
If you are uncertain of how to interpret the exceptions to the Communications Decency Act, contact your Internet Defamation Attorney.
COMMUNICATIONS DECENCY ACT of 1996
- Eff.org ~ articles related to Communications Decency Act
- Epic.org ~ Communications Decency Act struck down
FREEDOM OF SPEECH
- Freedom of Speech and Online Hate Speech
- ACLU History: Modern-Day Censorship: Reno v. ACLU
- Freedom Forum: The First Amendment
YELP REVIEWS EXTORTION
- Eric Goldman: Yelp Gets Complete Win in Advertiser “Extortion” Case–Levitt v. Yelp
- TechCrunch: Class Action Lawsuits Alleging Extortion Over Yelp’s Review System Dismissed
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