California Appeals Court Reaffirms Section 230 Protections In Lawsuit Against Yelp For Third-Party Postings
from the should-be-a-foregone-conclusion...-but dept
Section 230 is not completely screwed! A California appeals court decision has upheld Yelp’s immunity to defamation claims, running contrary to findings in two other lawsuits recently decided that state. Eric Goldman has the background on the case.
The lawyer-plaintiff is Lenore Albert. Her Yelp page. She claims a former employee orchestrated a social media attack on her business, including posting fake disparaging reviews on her Yelp page plus this image (which she claims isn’t clearly demarcated as user content instead of Yelp-sourced content)…
Albert also claims that Yelp further screwed up her page when she refused to advertise with it. She sued Yelp for defamation, tortious interference and intentional infliction of emotional distress. The lower court granted Yelp’s anti-SLAPP motion. The appeals court affirmed.
After deciding that posted reviews were not commercial speech (which would not be covered by the state’s anti-SLAPP statute) and of public interest (the plaintiff being a lawyer involved in foreclosure proceedings), the court moves on [PDF] to solidly stake out the extensive coverage of Section 230 protections for service providers.
Since Yelp is an internet service provider, it is immunized, under section 230 of the Telecommunications Act of 1996, for defamation contained in any third party reviews on a Yelp page pertaining to a given business. The case law on this point is conclusive…
All doubt is removed when we examine two of the most extreme cases illustrating the immunizing effect of section 230, Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096 (Barnes) and Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119. These cases involved more than simple defamatory third party comments. Rather, in both cases third parties were able to use a website to cast the plaintiff in a decidedly negative false light. In Barnes, the ex-boyfriend of the plaintiff posted revenge porn on the website. The court held the website itself was still immune under section 230. (Barnes, supra, 570 F.3d at p. 1103 [to hold the website responsible would be to treat it like a publisher in contravention of section 230].) And in Carafano, the court held a dating website could not be held responsible for a third party’s virtual impersonation of an actress on the site. Of course, section 230 certainly does not immunize third parties who actually write defamatory posts to a website. (E.g., Bentley Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418 [former tenant could be liable for postings on Yelp about landlord]), but the website itself is unreachable.
The court also dismisses several other accusations by Albert, noting that Yelp has never solicited defamatory/misleading reviews and acts in good faith to remove defamatory or misleading postings when notified. It also points out that Albert’s claim that Yelp itself creates misleading/defamatory reviews is not supported by any available evidence.
The plaintiff has asked for the opportunity to amend her complaint (not a bad idea, considering every allegation was rebuffed), but the court points out that the anti-SLAPP statute would be completely useless if complainants were allowed to rewrite their pleadings in light of a court’s decision.
As this court recently pointed out, when a complaint is attacked by an anti-SLAPP motion, it cannot be amended so as to add or omit facts that would take the claim out of the protection of the anti-SLAPP statute. In the instant case, the plaintiff sued the ubiquitous business review internet service Yelp, alleging three causes of action which are unmeritorious. On appeal she posits she might be able to amend to allege other causes of action, at least two of which, unfair competition and false advertising, might arguably have merit given the Second District’s recent decision in Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294 (Demetriades) [suit based on Yelp’s statements about itself].) But whether they have merit cannot be reached in this case. Given the rule against amendments to add or omit facts in anti-SLAPP cases, we must affirm the judgment based on the three causes of action actually alleged.
While the decision does affirm what’s already assumed about Section 230 protections, it’s good to see these protections reaffirmed — especially given recent highly-questionable decisions emanating from that area of the country. Yelp will recover the costs of its appeal, and if Albert still has money to blow, she’s welcome to sue the people who posted the negative material, rather than the website hosting it.