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.

from Blogger http://tushnet.blogspot.com/2016/11/yelp-avoids-liability-for-allegedly.html

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