Court Dismisses Lawsuit against Yelp over One-Star Review

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 1, 2017

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YelpThe Ninth Circuit Court of Appeal has affirmed the dismissal of a lawsuit brought against Yelp by a business that received a one-star rating from an unhappy customer.

As the Los Angeles Times reported, the court held that “Yelp Inc.‘s star rating system does not make the San Francisco company liable for negative reviews posted on its site because it relies on material posted by users…”

Lock and Load

In 2011, a Yelp user who uses the name “Sarah K” posted a review of the Redmond Mobile Locksmith business operated by Douglas Kimzey. She wrote, in part,

THIS WAS BY FAR THE WORST EXPERIENCE I HAVE EVER ENCOUNTERED WITH A LOCKSMITH. DO NOT GO THROUGH THIS COMPANY.

She left the business a one-star rating.

A year later, “D K. Of Redmond Mobile Locksmith” posted a comment under the review: “Yelp has Posted a Fraudulent review on our Business.”

Then Sarah K posted again:

I was just informed recently by a friend that this business has been trying to contact others on my friends list asking about my original review. …

I do not work for a competitor of this business nor do I appreciate this type of harassment. I’ve already confirmed to Yelp that indeed this review was meant for Redmond Mobile Locksmith and I have the receipt to prove it. I will be issuing an official complaint to Yelp about this now.

Kimzey filed a pro se complaint claiming that Yelp was responsible for Sarah K’s reviews under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), Washington’s libel laws, and various other laws.

He also claimed that the first review by Sarah K was part of an

illegal scheme . . . operated by the EL-AD Group, which uses thousands of fictitious locksmith business names on the Internet in every major US city, to promote themselves. The district court granted Yelp’s motion to dismiss, finding that the federal Communications Decency Act (CDA)  “immunizes [Yelp] from the entirety of [Kimzey]’s lawsuit.”

Kimzey appealed.

Communications Decency

Section 230 of the CDA “immunizes providers of interactive computer services against liability arising from content created by third parties.”

Kimzey tried to plead his way around the CDA by claiming that Yelp itself created the review.

The court agreed that immunity under the CDA didn’t cover “content created or developed by an interactive computer service.”

However, said the court,

the immunity in the CDA is broad enough to require plaintiffs alleging such a theory to state the facts plausibly suggesting the defendant fabricated content under a third party’s identity. Here there are no such facts.

Takeaway

I previously wrote about how a New York court ruled that a dentist had misused copyright law to silence negative Yelp reviews, by claiming ownership of such reviews.

The Kimzey case shows that suing Yelp for libel isn’t likely to be effective in getting rid of bad reviews.

So what CAN you do if your business has been the victim of a Yelp review you consider false or fraudulent?

According to Yelp,

If you see a questionable review, please report it and include any information that our moderators can independently verify. Please note, however, that we don’t typically take sides in factual disputes and generally allow Yelpers to stand behind their reviews.

Although Yelp allows business owners to use their business accounts to respond to reviews, getting rid of bad reviews appears to be close to impossible.

The best strategy may be to encourage happy customers to leave good reviews that will eventually “dilute” any bad ones.

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