Lawyer Who Sues Yelp Admits He Had No Idea About Section 230 Safe Harbors

from the great-moments-in-lawyering dept

Thu, Jan 15th 2009 3:48pm — Mike Masnick

Last week, we wrote about a defamation lawsuit over a review on Yelp, which seemed to backfire -- bringing a lot more attention to the negative review than if left alone. That case actually was settled soon after, but yet another defamation lawsuit has been filed by yet another person -- this time a dentist -- over a negative review. There are a few things worth commenting on about this lawsuit, but the big one that caught my attention is that the lawsuit was filed both against the couple who wrote the review... and against Yelp.

Now, as pretty much everyone knows around here, filing against Yelp is a big no-no. Yelp is clearly protected by section 230 safe harbors that make third party service providers immune from liability for actions of their users. This is pretty widely known among anyone involved in anything having to do with internet law... but was not known by the lawyer who filed the suit. In fact, the lawyer admits in the article above that he "wasn't aware" of the law and will probably drop the suit against Yelp now that he knows about it. But, it certainly raises questions about the lawyer if he was totally unaware of a key piece of internet legislation before filing such a lawsuit.

Then, there's the bizarre response from the dentist, replying to the point that Yelp lets the service providers directly contact those who write negative reviews to try to clear up the problem. The dentist says: "I would be very upset and would not know what to say to them." Fascinating. So, rather than talking it out as adults and clearing up any misunderstanding (and from the sound of it, it was a basic misunderstanding), she jumps straight to the lawsuit stage? She doesn't know what to say to them, but has no problem dumping a lawsuit on them. Isn't America great?

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Filed Under: liability, section 230
Companies: yelp

49 Comments

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Anonymous Poster, 15 Jan 2009 @ 3:52pm

Both the dentist and the lawyer are friggin' idiots and neither should have either of those high-paying jobs.
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lavi d (profile), 15 Jan 2009 @ 4:02pm

This is pretty widely known among anyone involved in anything having to do with internet law...
I could has a law practice?
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Anonymous Coward, 15 Jan 2009 @ 4:54pm

Re:
I hope neither one tries to sue Engadget for you calling them an idiot :D
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Mike P, 15 Jan 2009 @ 4:56pm

You can has!
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Peavey, 15 Jan 2009 @ 5:04pm

Note to self
Note to self...

always use fake information when writing reviews online.
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Nelson Cruz, 15 Jan 2009 @ 5:49pm

"I woundn't know what to say to them, so I sued them"

This sounds like something out of one of those hilarious radio adds on Grand Theft Auto.
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Jenny, 15 Jan 2009 @ 5:49pm

Do people really use those to find a Dr. or Dentist? I can see a restaurant or hotel review. But Healthcare is different.
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Adrianos Facchetti, 15 Jan 2009 @ 8:05pm

Internet Defamation
Internet defamation is a niche area that many lawyers know little about. I am not surprised that this lawyer, let alone any other lawyer would not know about the Communications Decency Act. If you ask 100 lawyers what it is, I bet less than 5 would know. Further, I think it's a bit misleading to say that, "Yelp is clearly protected by section 230 safe harbors that make third party service providers immune from liability for actions of their users." This is an example of a blanket statement in an area of law that is changing, and which, unfortunately, gives false comfort to unsuspecting internet users. Mark my words: the CDA will not be as expansive as it is today. Reviewer beware.
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Steve, 15 Jan 2009 @ 9:29pm

Shake Down
I have seen more than one instance where a negative Yelp review was intended to shake down the reviewed party for free services in exchange for retraction or amendment to the original review. I think blanket protection to Yelp or other services providers is dangerous as there needs to be a way to force service providers to address such abuse.

I am in no way making a judgment on this case but the damage caused by a service provider not investigating or monitoring such abuse can be significant.
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Dan, 16 Jan 2009 @ 12:55am

sue happy
anyone can sue anyone else, but they may then be counter sued for REAL damages.
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PaulT (profile), 16 Jan 2009 @ 2:28am

Re:
Why? I'd say it's far more important to get an idea of the competency of a healthcare professional than a restaurant...
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Peter Blaise Monahon (profile), 16 Jan 2009 @ 2:53am

A judge should send them back to negotiation
.

If I were the judge assigned the case (and I've seen this happen in court), I'd first ask,

"Have you tried to resolve this with each other?"

If the answer is, "No," as the dentist seems to say, then I, as judge, would reschedule for a month, letting the parties know in the strictest terms that I'm miffed and don't like being used as the first line of communication between parties. If the case is not dropped by the month, I'd want a very complete explanation of the attempt to resolve. Then the case could proceede.

It really is up to the judge how silly and inappropriate these things can become.

However, I've also seen judges complete loose it and act on a clear misunderstanding (to coin a phrase!), and I've also seen judges "play" with a case no end for their own entertainment.

So it goes both ways, er, all ways:

- silly plaintiffs,
- silly lawyers,
- silly judges,
- silly laws.

It's never ending. People are like that. Always have been. Always will be.

People.

Can't live with 'em, can't sue without 'em! ;-)

.
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Anonymous Coward, 16 Jan 2009 @ 3:05am

.

Earlier: "... the damage caused by a service provider not investigating or monitoring such abuse can be significant ..."

Same with the phone company versus phone fraud, the booze and car companies and drunk driving, and so on.

Sorry.

Free speech = responsible speech, and the service provider didn't do the talking!

.
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Zack, 16 Jan 2009 @ 7:10am

Re: Shake Down
This is definitely a problem, but where do you draw the line? Once ONE user gets sued for defamation or liable or anything else that can be tied to a negative review, that opens the field up to all sorts of law suits from other companies with bad reviews...then people become afraid to be honest, then the whole system is screwed.

Maybe it should be up to the service provider (Yelp, in this case) to mediate and make sure the two parties can come to an agreement - not involving free services, or completely removing the negative review, but instead maybe just having the user modify the review, taking out words like "dishonest practices" and other more aggressive claims, and just stick to, "this place sucks, don't go there" and give it 1 star.

I don't know, it's going to be interesting to see how this issue pans out over the coming years. Certainly could make or break the review sites...
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nasch, 16 Jan 2009 @ 9:56am

Re: Internet Defamation
Sounds like the dentist should have used some kind of review site to check out the lawyer...
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nasch, 16 Jan 2009 @ 10:02am

Re: Re: Shake Down
If the user believes the service provider engaged in dishonest practices, why should they be forced to remove that language? Doesn't it make a review site less valuable if you're only allowed to say certain things? Or not allowed to say certain things?

I think the dentist (or whoever) should be allowed to respond on the site. If they go crazy and put in all caps profanity or some such, they're shooting themselves in the foot and get what they deserve. If they offer a reasoned counterpoint or even an apology and offer of recompense of some kind, they'll come off well. Perhaps even get creative - come on in, mention this bad review for a 10% discount. If the service provider has nothing useful to say in response to the review, I think that should be the end of the story (although of course they always have the option to sue, regardless of the web site's policies and practices).
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John Drake, 17 Jan 2009 @ 7:43am

Law
This is a stupid story.

If existing laws are not challenged, how do you think changes or a presidence is set?

He should continue to sue Yelp for harboring and hosting liars, stalkers and fake reviewers.

Perhaps the safe harbor laws needs a second look for such behavior on behalf of the host who uses those bad reviews as a way to sell advertising by offering to remove them or push them to another position on the web page.
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Nicolas Martin (profile), 18 Jan 2009 @ 5:35am

The cartel
Dentists are members of a state enforced cartel. They don't have to talk it out as adults. Physicians and dentists are using their monopoly powers to try to squelch any publicly expressed objections to their services. There is even a company, Medical Justice, which provides physicians with a contract that, if signed by new patients, prevents them from criticizing the doc on the Internet. If the patient won't sign, the doc refuses to see the patient.

http://www.modernmedicine.com/modernmedicine/Modern+Medicine+Now/Safety-net-Doctors-cont ract-with-patients-to-avoid/ArticleStandard/Article/detail/563269?contextCategoryId=40145

This sort of contract would be acceptable if the market for medicine were free and consumers had power. But doctoring is a state-imposed cartel, so consumers already have but slight power, and this contract reduces it further. Imaging if all retailers were to make as a condition of sale that consumers could not make negative comments about them.
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beware, 19 Feb 2009 @ 10:09pm

lawyer suing yelp
The physician or dentist is prevented from commenting on patient care due to privacy laws which prevent patient protected information from being divulged. Therefore they can not respond online to any allegation that patient care has been compromised. It is therefore open season on all practitioners. The result will be that sensitive people will leave the profession. What will be left will be professional business people who will view these negative reviews as simply the cost of doing business.
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angela, 26 May 2009 @ 9:57pm

Attorney directory
Martindale.com helps corporate counsel and law firm lawyers connect with lawyers and firms. We are the destination for buyers of legal services. Use Martindale-Hubbell's lawyer locator to find lawyers, law firms, in-house counsel, corporate legal departments, US government and law school faculty. The mesothelioma attorney and mesothelioma lawyers directory is the place to search for an attorney or lawyer for your mesothelioma settlement.

===========================
find lawyer
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dace, 21 Sep 2009 @ 1:47am

It's time some of these people to find a lawyer, perhaps an injury lawyer ...here's an attorney directory for them....
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Lawyer, 17 Oct 2009 @ 4:30pm

What an Idiot
What an idiot. It looks like this lawyer needs an of his own!
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pavan, 4 Nov 2009 @ 10:36pm

Leo, with his fancy degree, could help Dr. Taitz. Will he? Heck no. If anything, he would try to get her to do things more traditionally and status quo, rather than helping her create such incredible and noteworthy legal strategies. Leo would hinder Dr. Taitz, and no one wants that. lawyers
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Janet, 11 Nov 2009 @ 10:24am

Yelp is responsible
Yelp is responsible because they continually remove positive reviews and keep the bad ones. Especially, if they are calling you weekly for money. I've had 10 positive reviews removed but one negative review stays up no matter what. They even double listed the one negative review and had it count towards the total stars. I am all for open speech but they are manipulating the reviews and affecting businesses. I did a screen shot of my listing to prove they are double listing. By the way, the positive reviews started dropping like flies when they started to call for money.
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Lawsuit Attorney, 21 Nov 2009 @ 8:32am

Some Lawyers are a joke
The lawyer who sparked this might not specialize in internet law, and probably doesn't. The fact that he went ahead and filed a lawsuit without even doing any research however is pretty sad. He must have been bored.

In response to Janet- yes, Yelp can be quite the entity to work with.
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RW, 11 Dec 2009 @ 9:31am

Re: Yelp is responsible
Same thing happened to our business. We advertised with them one month. Then we had a false review made up by our competition they refused to remove that had nothing to do with our business. The competitor removed it themselves - but then they began taking down every single good review so we have NONE. I want people to know not to use yelp.
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Laws, 6 Jan 2010 @ 10:49am

Should have done some research
..on internet Law
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Erik champ, 24 Jun 2010 @ 1:41pm

It turned something funny expecially when the second filed the case against same person for same reason.However even i too have known this section 230. ----------- ----------- Erik Tax Relief
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suzan67 (profile), 7 Jul 2010 @ 9:44am

I think in my opinion he lacks the ability to serve,he seems to be incapable of doing his job in a better way. ========= Suzan Forum Posting
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fdfd, 16 Aug 2010 @ 5:05pm

jfkdjfk
jkdfj
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California Lemon Lawyer, 18 Aug 2010 @ 3:27pm

Another Lawsuit
This is a joke. Lawsuits should never be taken lightly. It's time and money on the line. These things should be carefully considered. Love to hear how this turns out.
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Gambling Lawyer, 22 Aug 2010 @ 12:30am

Pick your fights
That Yelp, such an unknown power house i suppose. I was not aware of this at all! That Dentist should rethink this on many levels, not just because the power of law behind yelp, but it's just a silly reason to fire up such thing.
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Yelp Is Dishonest, 12 Nov 2010 @ 9:38am

Our business has had 5 reviews so far. One is a negative review from a man who is lying about being a client; the other four are very positive. Yelp keeps only the dishonest negative review on our Yelp page, and filters out all positive reviews. Then, after complaining about this, they start hitting me up to set up a "business" account. I will never trust Yelp, again.
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SUING FOR SLANDER, 31 Jan 2011 @ 4:52am

Lawsuit
I appreciate the above post. This is surely a big trouble.. and I think it needs to be solved with special consideration.
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Erin, 10 Aug 2011 @ 3:31pm

I want to sue yelp
Well i have had over 20 real customer reviews taken down off yelp. they were all 5 stars and my business and income has gone down about %400. it all happened after they called me asking if i wanted to advertise. they said i would have to committ to at least a year of payments of $350 a month. so i said i wouldn't make that big of a commitment without trying it out first (i said no). It was within a week that all my reviews went down along with my business. Also, every new customer review i have got since the incident has been "flagged" mysteriously within 4 days of being post. One of my reviewers even reached out to me asking why his review was taken down (as if i did it) and i told him that yelp took it down. Apparently he wrote yelp about the incident and they canceled his account. I love using yelp as a consumer, but its pretty clear that its a very very very political website, and unless you are the kind of business that is going to get the yelp "elite" to review you all the time (aka a restaurant or hipster joint) then you will probably not be able to hold onto any real reviews.
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mark, 2 Sep 2011 @ 6:30pm

Review Yelp !!!
There is not much you can do against yelp, but at least you can go to yelp (san francisco) and review yelp. You will see a massive number of 1 star reviews for yelp recently. You can also contact the BBB and share your experience with them. At least you can make Yelp do some letter writing and paperwork. The way it stands now, yelp is giving people the power to cost a business a lot of money, just because the person did not get what they want. Since many people on Yelp are anonymous, there is no way to "work it out" with that person.
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legal90210 (profile), 17 Jan 2012 @ 12:47pm

YELP HELPS NEGATIVE REVIEWS & IS ANTI-BUSINESS! DO NOT SIGN UP WITH THEM EVER!
We have a medical Business that we listed on Yelp. On two occasions two individuals in 2010 and one in 2011 posted fake, defamatory and slanderous on YELP. We contacted Yelp for an entire year and it took them that long to finally take down the comment and delete our account.
We were unable to delete our account because we got an E-mail from YELP that our account had opened few other accounts and hence we had to be removed!

Now we have another posting that a person left naming the patient in front of him breaking the HIPP privacy rights of the patient. I have personally written a 100 letters to YELP to remove this comment and to delete our account yet one more time, ( our new marketing person was unaware our previous problem with yelp and had opened an account), NO RESPONSE from Yelp.
Yes yelp may be protected by the 230 safe harbor law but guess what the climate is changing and Yelp is now participating by encouraging the negative comments by removing the positive one and leaving defaming, slandering and fake posting on hence depending on a judge and court they can be found responsible as well in the eyes of LAW!
Who is YELP to keep negative postings of hard working doctors and dentist because some IDIOT didn't like the services or didn't want to pay hence decides to leave nasty comments to ruin reputation of these harding working people?
SHAME ON YOU YELP, I HOPE YOU get bought over by some other company and FAIL because YELP is a HORRIBLE site with the MOST HORRIFIC costumer services who just wants to Rip you off!
HOW IS THAT FOR A REVIEW YELP???????????????
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legal90210 (profile), 17 Jan 2012 @ 12:47pm

YELP HELPS NEGATIVE REVIEWS & IS ANTI-BUSINESS! DO NOT SIGN UP WITH THEM EVER!
We have a medical Business that we listed on Yelp. On two occasions two individuals in 2010 and one in 2011 posted fake, defamatory and slanderous on YELP. We contacted Yelp for an entire year and it took them that long to finally take down the comment and delete our account.
We were unable to delete our account because we got an E-mail from YELP that our account had opened few other accounts and hence we had to be removed!

Now we have another posting that a person left naming the patient in front of him breaking the HIPP privacy rights of the patient. I have personally written a 100 letters to YELP to remove this comment and to delete our account yet one more time, ( our new marketing person was unaware our previous problem with yelp and had opened an account), NO RESPONSE from Yelp.
Yes yelp may be protected by the 230 safe harbor law but guess what the climate is changing and Yelp is now participating by encouraging the negative comments by removing the positive one and leaving defaming, slandering and fake posting on hence depending on a judge and court they can be found responsible as well in the eyes of LAW!
Who is YELP to keep negative postings of hard working doctors and dentist because some IDIOT didn't like the services or didn't want to pay hence decides to leave nasty comments to ruin reputation of these harding working people?
SHAME ON YOU YELP, I HOPE YOU get bought over by some other company and FAIL because YELP is a HORRIBLE site with the MOST HORRIFIC costumer services who just wants to Rip you off!
HOW IS THAT FOR A REVIEW YELP???????????????
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Tax Solutions, 28 Feb 2012 @ 8:17am

Competitors
One problem for Yelp is that competitors will make up fake reviews to win in the marketplace which is a problem.
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Legaldefender, 28 Mar 2012 @ 11:12am

Re: YELP HELPS NEGATIVE REVIEWS & IS ANTI-BUSINESS! DO NOT SIGN UP WITH THEM EVER!
That section 230 Safe Harbors protects companies like this is true to a degree.

Other companies (many) that have stood behind this law have been torn to shreds by competent attorneys in the past.

Any time such a company encourages or supports unfair activities, they are subject to consequences. The simple act of charging for a service and then prioritizing any one review negative or positive, over another is a manipulation and destortion of the truth. This is actionable by law.

To the extent that any purposeful distortions affect business, and the resulting tax base, negatively, Yelp can be found accountable.

Once there is sufficient cause, and of course potential for financial gain, a reputable law firm will file a viable class action. I am aware of one at least that is waiting patiently.

If Yelp continues these practices, they will have their day in court. And they will lose.
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Ali Hashemian, 27 Apr 2012 @ 9:26am

Yelp is not a simple reporter of facts
The question that comes to mind is that Yelp is not simply a publisher of facts BUT an arbitrator of it. Everyone knows of the freedom of press and safe harbor law (or should), but Yelp actually does more than publishing client comments. First it allows anyone to publish any comments about any business (perfect vehicle for competitors) without requiring any evidence that the person is real, or that they did actually used the services in questions or had an encounter with the business, (which may be all fine) but it ACTUALLY filters some reviews, often positive reviews based on some unpublished formula, which then has an effect of lowering the businesses star rating. I am not a lawyer, but this seems inherently unfair to the business. If the freedom of information rules, then how and why the filtering of the comments?
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Don Wachter, 14 Sep 2012 @ 8:57am

Re: Internet Defamation
I am looking for a Attorney to help me with my yelp problem I have 15 reviews 12 good ones and 3 bad ones the 3 bad ones are posted on yelp are all customers of my competition I know this because they posted good reviews about him and the 12 good reviews are filtered out how can this be legal Please help me fine a good Attorney.

Don Wachter (661) 714-0771
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Hitler, 12 Jan 2013 @ 10:56am

yelp is jewish
Yelp is led by a gaggle of jews. Look st their corporate page. That says it all. Jews love to destroy small businesses.
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Tavis, 8 Mar 2013 @ 12:41pm

Re: Yelp is responsible
Exactly , there are different issues here.

1 is the suit over a bad review , which is silly because everyone is entitled to their opinion especially if they paid for a product or service.

The 2nd issue is the endless amount of small business owners who feel they are being shaken down by Yelp for advertising money in exchange for better "policing" of their yelp page.

I personally have a loved one that is falling victim to this , which is how i ended up on this page. This story is from 2009 , here it is 2013 and the same thing is still happening.

Calls for advertising money from Yelp sales , followed complaints about unfair policing on yelp. Sounds like Yelp's originally business model wasn't working and this process came about somehow.
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bobby, 20 Sep 2013 @ 10:28pm

Why are you defending yelp?
Fuck you for making an article so simple as this as if these people are stupid and yelp is not that bad...u dont knwo the pain yelp causes people
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bobby, 20 Sep 2013 @ 10:29pm

Re: Re: Yelp is responsible
hey stupid fuck, dont make comments like this if u dont knwo how fucken yelp works...no one complais cus theres a negative review...people complain cus they TAKE OFF POSITIVE REVIEWS, while simultatnously showing negative reviews, which by the way many times are fake!!...
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Ray Gambrill, 5 Mar 2014 @ 12:00pm

Re: Internet Defamation
The Safe Harbors act would not protect Yelp since they filter out the reviews. If they allowed all reviews both good and bad to show then yes Safe Harbor. However most of the complaints that are filed against Yelp are do to them hiding positive reviews and only showing the negative.
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Aaron, 5 Nov 2015 @ 6:02pm

Liable
I had a customer post on yelp that my business was not licences and that we do not pay our taxes. Both are not true and I contacted yelp to try to get them to remove those reviews. They said that they allow peoples opinions to stand. They are allowing people to slander my business on their site. Dose anyone know what recourse I have?
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Jerome Risby, 24 Oct 2016 @ 3:16pm

YELP - Method for holing Yelp Libel for damages is Assault
The author of this piece is informed on the protections for Yelp, but misinformed on the protections for which Yelp is party to: Assault.

Being invited to an area of contention with those whom which to do one harm (ones' business) is assault, and not just a defamation claim, per the law the which the Clinton's are responsible which protect ISP provider.
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