Demetriades v. Yelp, Inc., 2014 WL 3661491, No. B247151
(Cal. Ct. App. July 24, 2014)
Demetriades operates restaurants and sued Yelp under
California’s UCL and FAL based on claims about the accuracy and efficacy of its
“filter” of unreliable or biased customer reviews. The trial court granted Yelp’s
anti-SLAPP motion and the court of appeals reversed.
The court noted that
Yelp expressly tells users that
“the filter sometimes affects perfectly legitimate reviews and misses some fake
ones, too. After all, legitimate reviews sometimes look questionable, and
questionable reviews sometimes look legitimate.” Plaintiff, when purchasing
advertising on Yelp, acknowledged in the advertising contract that Yelp’s
filtering software sometimes made mistakes. According to Yelp, in addition to
relying on the filter, a site user can judge how much weight to give to any
particular review by viewing the reviewer’s profile, reading the reviewer’s
reviews, and assessing statistics regarding such reviews.
This may ultimately help Yelp prevail on the merits, but it doesn't today.
Demetriades, who’d advertised on Yelp, alleged that Yelp
engaged in false advertising by claiming that each user review passed through a
filter that gave consumers “the most trusted reviews” and by making related
claims about the reliability of its filtering.
Demetriades alleged that these statements were false and misleading, and
that the filter suppressed more than a small portion of reviews; allowed “most
entertaining” reviews to be shown regardless of the source; allowed reviews on a
local business page regardless of whether the source was trustworthy or
unbiased; and suppressed a substantial portion of reviews that were unbiased
and trustworthy.
The trial court granted Yelp’s special motion to strike,
because Yelp met its initial burden of showing that its statements arose from
protected activity; statements about filtering on social media are matters of
public interest. The anti-SLAPP law’s
public interest exemption didn’t apply because the case wasn’t brought solely
in the public interest; Demetriades had a personal financial interest. The commercial speech exemption didn’t apply
because the statements about filtering didn’t relate to selling advertising,
and also Demetriades failed to show that they were statements of fact and not
puffery. Demetriades failed to establish
a probability of prevailing on the merits because he didn’t own the restaurants
and thus lacked standing, and because the statements were puffery/opinion. (I note some tension between the argument
that Demetriades had a personal stake in the claim and that he lacked standing,
but the court doesn’t go there.)
First, the court said that the business entity that owned
the restaurants was the proper plaintiff, but could be substituted in by
amending the complaint.
Then, the court found
that Yelp’s statements about its review filter were commercial speech squarely
within the relevant exemption from the anti-SLAPP law (for the record, § 425.17(c)).
This exemption says that the law
does not apply to any cause of
action brought against a person primarily engaged in the business of selling or
leasing goods or services [when] [¶] (1) The statement or conduct consists of
representations of fact about that person’s or a business competitor’s business
operations, goods, or services, that is made for the purpose of obtaining
approval for, promoting, or securing sales or leases of, or commercial
transactions in, the person’s goods or services, or the statement or conduct
was made in the course of delivering the person’s goods or services; and [¶]
(2) the intended audience is an actual or potential buyer or customer, or a
person likely to repeat the statement to, or otherwise influence, an actual or
potential buyer or customer....”
“The legislative history indicates this legislation is aimed
squarely at false advertising claims and is designed to permit them to proceed
without having to undergo scrutiny under the anti-SLAPP statute.” Under Kasky
v. Nike, distinguishing commercial from noncommercial speech requires
considering the speaker, the intended audience, and the content of the message. Here, Yelp’s statements about its review
filter are “commercial speech about the quality of its product (the reliability
of its review filter) intended to reach third parties to induce them to engage
in a commercial transaction (patronizing Yelp’s website, which patronage
induces businesses on Yelp to purchase advertising).” Statements about the efficacy of the review
filter were representations of fact, not mere puffery or opinion. A key factor in distinguishing puffery from
fact is specificity. The following Yelp
statements were factual claims:
·
“Yelp uses a filter to give consumers the most
trusted reviews”;
·
“All reviews that live on people’s profile pages
go through a remarkable filtering process that takes the reviews that are the
most trustworthy and from the most established sources and displays them on the
business page. This keeps the less trustworthy reviews out so that when it
comes time to make a decision you can make that using information and insights
that are actually helpful”;
·
“Rest assured that our engineers are working to
make sure that whatever is up there is the most unbiased and accurate
information you will be able to find about local businesses”; “
·
Yelp is always working to do as good a job as
possible on a very complicated task—only showing the most trustworthy and
useful content out there”; and
·
“Yelp has an automated filter that suppresses a
small portion of reviews—it targets those suspicious ones you see on other
sites.”
They were intended to induce consumer reliance on Yelp
reviews “by making specific and detailed statements intended to induce reliance.” The reference to Yelp’s “engineers” would
inspire confidence. Though Yelp used
words of emphasis like “remarkable,” its specific representations went beyond
mere opinion or puffery. It would be
illogical to conclude that Yelp’s statements that all reviews were filtered was
intended to mean anything other than what it said. “If Yelp intended the statements as puffery
or opinion, in the context of Yelp’s advertising-driven website such statements
would have limited utility; thus Yelp would have had no legitimate purpose in
making those statements about its review filter.” (This is Ivan Preston’s argument that by default
no statement an advertiser takes the trouble to make prominently should be
considered puffery.)
The next step was whether the intended audience was an
actual or potential buyer or customer or a person likely to influence an actual
or potential buyer or customer. Yelp
only receives direct revenue from businesses that advertise, but they wouldn’t
do that without the potential benefit from user reviews and without assurances
that potential patrons would be reading only reliable reviews. The user reviews were a device by which Yelp
carried out its primary business of providing advertising to business. “Thus, Yelp’s statements about the accuracy
and performance of its review filter are designed to attract users and
ultimately purchasers of advertising on its site.”
Demetriades wasn’t trying to stop use of the filter, but to
enjoin allegedly false statements of fact. This wouldn’t interfere with reviews
or legitimate speech.
Finally, the CDA didn’t bar these claims. “Nowhere does
plaintiff seek to enjoin or hold Yelp liable for the statements of third
parties (i.e., reviewers) on its website. Rather, plaintiff seeks to hold Yelp
liable for its own statements regarding the accuracy of its filter.”
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