How Social Mores Can Deal With 'Unfair' Copying, Even In Absence Of Copyright

Once Again, Yelp Not Liable For Reviews Someone Doesn't Like

from the how-many-more-times? dept

Mon, Sep 13th 2010 2:22am — Mike Masnick

It's really quite stunning how frequently people sue review sites because they're unhappy about reviews of their business. You would hope that the lawyers these upset business owners use would know better -- but all too often the lawyers appear to be totally unfamiliar with Section 230 of the CDA and with the basic concept of properly applying liability to the party who actually did the action. And every time this happens, the case gets thrown out on 230 grounds. It's happened yet again, with a dentist having a case against Yelp dismissed thanks to Section 230. Sometimes we do see some creative lawyering to try to get around Section 230, and this time, beyond the basic defamation claim, the lawyer tried to also claim "deceptive practices" (under NY state law). The problem there is that the law in New York applies to "consumer-oriented statements," and the complaint was about inaccuracies in statements that were meant for small business owners. As Rebecca Tushnet notes:

However, the CDA doesn't contemplate protecting Yelp's use of speech as leverage in its business model. Reit alleged that Yelp provided deceptive terms on its website, encouraging both businesses and individual users to believe that the reviews are not manipulated by Yelp. Also, Reit alleged that Yelp's sales force used negative reviews on the site as leads for new ad business, and that sales reps told business owners that, if they paid for ads, the reps would assist in deleting negative reviews. But if a business owner refuses, Yelp would delete positive reviews. Yelp's guide for business owners stated "We remove the guesswork by screening out reviews that are written by less established users. The process is entirely automated to avoid human bias," and yet the system is not entirely automated. This allegedly deceived the public by representing that reviews are ordered, reviewed and removed by computers, and not manipulated by people. Reit referred to class action suits against Yelp of which he is not a member, and did not allege that he was a victim of this conduct.

The General Business Law bars deceptive acts or practices in the conduct of business and false advertising, giving a private right of action to any person who's been injured; a plaintiff need not be a consumer, but must allege consumer-oriented conduct that is materially misleading and that resulted in injury. However, the identified statement by Yelp isn't addressed to individual consumers seeking dentists, but to business owners. "Yelp's statement is not materially misleading to a reasonable consumer seeking dentistry, and is not a deceptive practice." Likewise, deleting postings for the purpose of selling ads would be business conduct, not consumer oriented conduct. Thus, the claim was dismissed.

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Filed Under: defamation, section 230
Companies: yelp

16 Comments

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Anonymous Coward, 13 Sep 2010 @ 3:49am

Yet another case for the right to sue for Legal Malpractice awards.
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Danny, 13 Sep 2010 @ 5:39am

Unfamiliar? Yeah Right...
... but all too often the lawyers appear to be totally unfamiliar with Section 230 of the CDA...

ometimes we do see some creative lawyering to try to get around Section 230...

That's it right there. Maybe its because they've watched too many episodes of Law & Order but lawyers know full well about Section 230 protections. If they weren't familiar with it they why do they fight so hard to get around it?
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Bri (profile), 13 Sep 2010 @ 5:50am

Business as usual for Yelp
I think you are missing the point, which is that Yelp continues to engage in shady if not illegal business practices. I don't understand how they are allowed to post fake negative reviews and then extort business into paying them. As far as I am concerned they are scum of the earth and I will continue to avoid their site.

On the flip side, it would be nice to have some competent lawyers blow Yelp out of the water.
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Ed, 13 Sep 2010 @ 6:21am

Doesn't the Lawyer get paid something weather the suit is dismissed or not?
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In NH, 13 Sep 2010 @ 7:08am

The New Mob
I agree with Bri, this is extortion. As a consumer, I'm not willing to trust Yelp at this point. Based on the article, if you pay them they'll delete negative ads. If you don't pay them, say bye-bye to the positive ads. Consumers don't realize this.

I have a friend who is monitoring ads on a local business with a lot of lawsuits. She found a negative ad and copied it. That ad is no longer available to patrons who might have been warned--and it really wasn't that negative--just unhappy. Customers now think that location has only Happy-Happy customers, while who knows how many negative reviews have been removed that they'll never see or know about.
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Jeff, 13 Sep 2010 @ 8:15am

Easy Money
Your business is total suck!

(AHEM)

For a small fee of $9.95, Techdirt will happily delete this review and give you a positive image. Order today!
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mischab1, 13 Sep 2010 @ 9:44am

Re: Business as usual for Yelp
Nothing in this article says that Yelp posts fake reviews.

However, finding out that Yelp deletes positive reviews if a business doesn't advertise with them and deletes negative reviews if a business does, totally ruins their credibility as a review site to me.
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Bri (profile), 13 Sep 2010 @ 1:09pm

Re: Re: Business as usual for Yelp
Yelp has in the past been outed for posting fake reviews. In one case there was a negative review before the restaurant was even open.

The fact that they will conceal or promote certain views, i.e., thus alter a restaurant's ratings for money is tantamount to deceptive business practices. Furthermore, contacting individual restaurants for money to garner positive reviews is extortion. And if they are altering reviews to make a restaurant appear in a more negative light, I would argue that's libel because they are intentionally misrepresenting a restaurants rating.
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Adrian in Dallas, 14 Sep 2010 @ 4:07am

YELP!
I was all "rah-rah" for YELP at first, but after getting my ONLY negative review yanked off its site, I have grown wary of their commitment to consumers. The reason they gave for yanking my ONLY negative review? That the event happened too long ago (which, admittedly, was true, but the businesses was still in business and still, as far as I could determine, ripping off their customers). It's my guess, based on reporting about YELP, that they got paid by the business in question to "lose" my review. So much for consumers...
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Yelp Is Dishonest, 12 Nov 2010 @ 9:34am

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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Bri (profile), 12 Nov 2010 @ 2:45pm

Re:
Good to hear from you. What Yelp is doing is nothing short of slander and extortion. I implore you to contact the BBB, the FCC and anyone else who will listen. If you have the time I would even consider a small claims court action against them, just make sure your documentation is in order. Good Luck!
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E C, 12 Apr 2011 @ 4:33am

Yelp = Scam business
My thing is how can they not be shut down when they are basically black mailing you to pay them so these reviews will magically go away? To me they should be put behind bars for blackmail. This IS illegal, and by doing what they do it is essentially blackmail, which is WAY ILLEGAL in the USA, so haul their rear ends to jail! Also if there is no human interference and the computer does all the good work, how come I have had 3 of my customers accounts closed? They had one review, it was my business and now they say their accounts have been closed by YELP!! But the bad reviews are put up front and center, then when you call they TELL you that if you advertise with them at $250 per month the bad reviews will go away? This is blackmail. BOO YELP!!!
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Bri (profile), 12 Apr 2011 @ 2:53pm

Re: Yelp = Scam business
@ E C
As a business owner you are in prime position to fight this thing! I suggest you start with a BBB and FTC complaint and then I would even look into contacting your local DA's office. I still don't understand how this isn't illegal by any normal standards.
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ari manes, 25 Mar 2012 @ 4:35pm

YES
Finally a site where folks are aware of whats going on!....not the usual "oh yelp is so wonderful....they help me make so many decision"....bottom line is that they are vehicle for those who would write bogus and defamatory content....completely immune to legal action....and they are very knowledgeable about how to play the game...they do a very good job of that...too bad the days of learning about where to go (for this or that) from word of mouth are over
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Jeremy MacDonald, 9 Sep 2012 @ 7:29pm

Yelp reviews - Relief finally!!!!
Check this out - unyelpme.com! - we found it and it's fantastic - it will instantly fix your Yelp review stress like it did ours. We got our own reviews site that also ACCEPTS reviews too.
We did it all in a few minutes and never have to care again about Yelp ot any other review sites affecting our business.

Just go to unyelpme.com and read the one page there and you'll undertand in a few minutes.

We think it's fabulous!

Good luck all!
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Shadi, 20 Sep 2012 @ 11:10am

Have you seen the pictures on Yelp's listing on Yelp? Just saw a few, pictures of employees you can tell they were hand picked, I don't think normal good people would want to work for Yelp! There is one picture of this "Yelps Rules" wrote in the sands! This alone shows the mind set of these inhuman people! They believe they have they are ruling our lives! They are aware of destroying lives and they are proud of it! Hoe creepy is that!

People in over seas pull down dictators by putting their lives on the line, why can't we have an organized demonstration to bring light and attention to this?
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