Thursday, November 10, 2016

Yelp avoids liability for allegedly biased filter yet again

Albert v. Yelp, Inc., 2016 WL 3910830, No. G051607, 44 Media L. Rep. 2357 (Cal. Ct. App. July 15, 2016)

Albert, who operates a small law office, sued Yelp for various claims, and Yelp brought an anti-SLAPP motion.  Although she might have been able to amend her claim to add potentially meritorious causes of action, that can’t be done to avoid an anti-SLAPP dismissal.

After a temporary employee of Albert’s became upset because he believed Albert had missed a deadline concerning a case involving a friend of his, he allegedly enlisted a group of his friends (and possibly others) in a campaign of defamation against Albert. “The campaign allegedly included having nonclients pose as clients to write derogatory reviews about Albert’s services.” 

Albert had no choice about having a review page on Yelp, though Yelp also sells ad packages to reviewed businesses.  A Yelp VP declared under oath that “the software does not favor advertisers or punish non-advertisers.” Yelp also claimed that it used a filter to try to weed out reviews from interested parties, whether false positive reviews from employees, or false negative reviews from competitors.  These reviews are still accessible, but don’t count in the aggregate star rating.  Albert alleged that her decision not to advertise on Yelp resulted in the removal of at least one positive, five-star review from the counted reviews, and the display of multiple negative reviews.

Albert alleged that the format of a review page would feature information about the business in the upper left, under a Yelp review banner.  “The space to the immediate right is a space for photos. If no photos are posted by either the business itself or reviewers, there is merely a rectangular box with a faint outline of city buildings suggesting a sort of skyline.” Albert alleged that her page would look like this without any photos:

Photos that are posted “generally look as if they were posted by the business itself for promotional purposes.” But Albert alleged that, as part of the campaign against her, a picture was appended showing a “Gone Crazy Be Back Soon” post-it, with no indication that it came from a third party:

Albert was allegedly unable to delete the post-it note picture. Her complaint against Yelp alleged (1) defamation; (2) intentional interference with economic advantage and (3) intentional infliction of emotional distress. The trial court granted Yelp’s anti-SLAPP motion.

There was no question that Yelp had been sued for its exercise of free speech rights; but was this speech about a matter of public interest? “[C]omment on issues of public interest are integral to Albert’s claims,” given Albert’s self-presentation, and associated press publicity, as a crusader fighting foreclosures on behalf of small homeowners.  “The tenor of many of the third-party posts giving her bad reviews was that she was not living up to her image as such a champion.”  The dividing line between purely private speech and comment on issues of public interest was whether the speech merely concerns “a particular interaction between the parties” or touches on “matters of public concern that can affect many people.”  The appellate court concluded that the posts about Albert “implicate broader matters than just whether she missed a deadline in one case,” given her heavy involvement in the foreclosure fallout from the Great Recession.

The statutory exemption of commercial speech from anti-SLAPP protection applied only to a defendant’s statements trying to sell its own products or services, not to a third party’s comments about some other person’s products or services.  Thus, the court of appeals proceeded to assess whether, if the facts were as Albert claimed, Yelp could be held liable.

Defamation: §230 applied, easily.  Roommates supported Yelp, because there was no evidence that it solicited defamatory or misleading reviews. Indeed, “[i]t is easy to overlook that the Roommates court, while saying the website could be liable for its own eliciting of illegal preferences, also said that a free-form ‘Additional Comments’ section of the website was protected under section 230.” Even if Yelp’s algorithm downgraded non-paying businesses, there was no liability because Yelp didn’t create any of the bad reviews.  It’s not enough for an ISP to make it “too easy” for vindictive third parties to sully reputations, or for it to “psychologically” encourage defamatory reviews.  Affirmatively asking third parties to post defamatory content might be actionable, but there was no evidence that Yelp did that.

Intentional infliction of emotional distress: “Since Albert provided no evidence that Yelp itself authored any of the defamatory postings or that Yelp intentionally hid positive reviews, nothing it did would approach extreme conduct.”

Intentional interference with prospective economic advantage: This requires a separate wrongful act by the defendant designed to disrupt an economic relationship. Yelp’s §230 immunity for the posts precluded liability.

Other possible causes of action: “It might be true, in a vacuum, that what Yelp says about itself, and specifically its review filter, could constitute commercial speech and thus be exempt from the anti-SLAPP statute.” But the anti-SLAPP statute can’t be circumvented via belated amendments to the complaint.

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