In 2014, California passed the so-called “Yelp bill” to protect Californian customers from getting their pants sued off over bad reviews.
It was designed to protect against businesses that sneak non-disparagement clauses into consumer contracts. Such clauses forbid customers from leaving negative reviews on sites like Yelp, and they often carry extremely painful fines for those who break them.
What the Yelp Bill wasn’t designed to do: protect reviewers from getting sued for defamation, which isn’t covered by the First Amendment.
Defamation is a claim that’s generally false and that’s been made to someone other than the person defamed.
Now, Yelp is hashing out a court order to remove one such defamatory review.
As Ars Technica reports, the California Supreme Court has agreed to hear a case wherein a lower court ordered Yelp to remove a bad review about a law firm that was written by an unhappy client.
If this case shows anything at this point, it’s that you’re playing with fire if you write bad reviews about lawyers: the lower court issued a default judgement for over $500,000 against the reviewer, Ava Bird.
The law firm’s owner had sued Bird for defamation, but Bird was a no-show in court – twice.
You can take a look here at the bad review Bird left for The Hassell Law Group under the username “Birdzeye B.,” along with a rebuttal from attorney and firm owner Dawn Hassell.
After her two court no-shows, a trial court awarded the half-million in damages against Bird, gave her five business days to take down any negative reviews, and ordered Yelp to take down any reviews written by “Birdzeye B.” or under what was allegedly Bird’s other username, “J.D.”
Santa Clara University legal scholar Eric Goldman pointed out in a lengthy blog that the court didn’t actually have to strong-arm Yelp into removing a review, which the review site had flat-out refused to do.
In fact, Yelp filed a motion to vacate the judgment.
Given that Yelp users can delete their own reviews, the order to make Bird delete them should have sufficed, but the court opinion for some reason doesn’t delve into the redundancy of also ordering Yelp to delete the reviews.
The court also spurned Yelp’s editorial decision-making responsibility when it comes to defamatory content. From the judgment:
To the extent Yelp has ever meant to contend that an injunction requiring Bird to remove defamatory statements from the Internet injuriously affects Yelp, we disagree.
Yelp’s claimed interest in maintaining Web site as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment
…an attitude that Goldman disagrees with:
Of course any removal order injures Yelp by usurping Yelp’s editorial policies about its content database. But because of the default judgment on defamation, the court can neatly sidestep that First Amendment injury by claiming that we know this content is beyond First Amendment protection.
The court isn’t interested in Yelp’s editorial policies because it “treats Yelp more like a passive technology conduit that gets no First Amendment love,” he said.
Apparently, the court think this is no different than telling a janitor to do a cleanup on aisle 5.
Goldman notes that we’ve already seen default judgments used as a “search engine scrubbing tool,” pointing to examples of how Google and Microsoft (with its Bing search engine) are starting to resist stripping content from their search indices at courts’ behest.
The California Supreme Court hasn’t set a date for hearing the case, which tests the Communications Decency Act of 1996.
As Ars’ David Kravets notes, the court’s decision to review the case comes three weeks after a federal appeals court ruled that the act shields Yelp from being sued for libel in connection with users’ negative reviews.
Dr. Michael D. Scott
I’m surprised that Yelp was not named as a codefendant in the litigation. (I haven’t read the pleadings or the briefs, and I’m not going to.) It’s difficult to see how the Court has jurisdiction over a non-party.
Anyway, there must be a “coding” solution to this whereby those who register with Yelp create a code – basically a private key – that the Yelp site uses to encrypt the content on its servers such that only the registered user with the key can delete the post (point them to a site that creates UUID numbers and suggest using something like a93f06b2-2ba8-4e59-adbc-729053b54f88 for their private key).
Yelp could then revise its terms and conditions for use of its site to provide that: registered users are solely responsible for the content of their posts; Yelp does no independent investigation whatsoever on the content of any posts; by authenticating (that is, encrypting) posts with their private keys, users are assured that the posts cannot be revised or modified by Yelp or anyone else; and Yelp keeps no record of the private keys and cannot delete specific posts without the corresponding private key.
I assume Yelp already provides that content posted cannot be illegal (violation of criminal laws prohibiting kiddie porn, promoting the sale of guns, illegal drugs, etc.), and if Yelp receives a subpoena or court order that a registered user is posting information in violation of applicable criminal law, Yelp will terminate that user’s right to use the site entirely. In other words, the user’s user name and password as well as all posts made with that user name and password would be deleted, and Yelp would cooperate with the criminal authorities to identify the individual.
In this case, Yelp could take the position that it can’t delete the post because it doesn’t have the private key. While the post may subject the user to civil liability, it is not criminal. To require Yelp to terminate the user’s account entirely would violate the user’s First Amendment rights and potentially subject Yelp and/or the Court to a claim of conspiracy to violate the user’s legitimate civil rights as to those posts that are not offensive and not illegal.
Bottom line: post something criminal and Yelp will terminate your account entirely and assist the authorities in your apprehension and prosecution. Short of that, Yelp has no ability to selectively delete posts. The Court’s remedy is to order the user to use their private key and delete the post. If they don’t, they’ll be jailed for contempt. Yelp is out of it.
Bruce
You contradict yourself here by saying “…the user’s user name and password as well as all posts made with that user name and password would be deleted…” and in the following paragraph “…Yelp could take the position that it can’t delete the post because it doesn’t have the private key.”
If possession of the private key is a requirement to delete a single post, it MUST also follow that it would be required to delete ALL posts.
Anonymous
Watch out for YELP! They encourage false negative reviews, and perhaps even create and draft them, without regard to truth, accuracy, or the harm they cause innocent people. Then they have the audacity to have others call and attempt to extort the victim business owner, by offering to have the negative review dropped in exchange for a payment. I know. It happened to me.
Not a Yelp fan
If only