What the Yelp defamation case could mean for internet free speech

A California lower court decision could allow business to legally remove negative reviews of their services from review sites, internet advocates say.

Eric Risberg/ AP/ File
Yelp CEO Jeremy Stoppelman poses at his company's headquarters in San Francisco on Aug. 1, 2014. Yelp.com is warning that a California lawsuit targeting a disgruntled former client's critical posts about a law firm could lead to the removal of negative reviews and leave consumers with a skewed assessment of restaurants and other businesses.

Should it be legal to censor negative consumer reviews about goods and services? That’s the fundamental question behind a recent court ruling, internet advocates say. On Wednesday, the California Supreme Court agreed to hear an appeal by Yelp.com, after a lower court judge ordered the review site to remove a “defamatory” user-published comment.

According to Yelp and other popular sites, the lower court ruling could set a dangerous precedent. If upheld, attorneys say the decision could force third-party websites to remove negative reviews of businesses and products featured on their site – a notion that has prompted concern in tech circles, while Congress debates similar issues.

It all began in 2012, when Ava Bird hired attorney Dawn Hassell's law firm to represent her in a personal injury case. The firm withdrew from the case after Ms. Bird allegedly failed to return phone calls and emails. Later, Bird accused Ms. Hassell of incompetence in a Yelp review.

In 2013, Hassell filed a defamation lawsuit against her former client. San Francisco Superior Court Judge Donald Sullivan found that the review was indeed defamatory. After Bird failed to remove the post herself, Judge Sullivan ordered Yelp to take it down.

“This case is not one of a ‘bad review,’ ” said Monique Olivier, Hassell’s attorney. “It is a case where a court adjudicated statements to be defamatory after receiving and reviewing evidence about the falsity of those statements.”

Yelp supporters claim the order violates Section 230 of the Communications Decency Act. The 1996 law is generally interpreted to have made users, rather than host sites that post their comments, responsible for defamatory or offensive content.

“The lower court's decision is ripe for abuse, contradicts longstanding legal principles, and restricts the ability of websites to provide a balanced spectrum of views online,” said Aaron Schur, Yelp’s senior director of litigation.

Without the common understanding of Section 230, that shields websites from liability, Yelp claims that businesses could discourage open discourse on the internet. If host sites had the legal obligation to police user content, they simply wouldn’t publish negative reviews, business columnist Michael Hiltzik argued in a Los Angeles Times op-ed:

In the case of a review site like Yelp, only positive reviews would survive, destroying the site’s usefulness. It’s true that many websites, including The Times’, regulate users’ contributions and remove potentially offensive material. Under Section 230, that discretion belongs to them, not a judge.

That sentiment was echoed by a number of prominent sites and organizations – including Google, Facebook, Microsoft, The New York Times Company and Fox News Network – many of which filed amicus curiae, or “friend of the court,” letters on behalf of Yelp.

On Wednesday, as the seven-member California Supreme Court voted unanimously to hear Yelp’s appeal, Congress was also considering a related issue.

A bipartisan bill, sponsored by Reps. Joe Kennedy (D) of Massachusetts and Leonard Lance (R) of New Jersey, seeks to protect customers against “non-disparagement” clauses imposed by businesses. Customers have often signed such contracts, and are they sued after publishing a negative review.

Congressmen must reconcile the bill with similar Senate legislation that passed last year before it can be delivered to the president’s desk for approval.

Diverse reviews are necessary to the growth of mid-level businesses, said Ellen Schrantz, the director of Government Affairs and Council at the Internet Association, a trade group that represents Yelp, TripAdvisor, and Amazon.

“Without protecting that you're not only looking at free speech issues, but massive economic issues,” she said, according to the Associated Press.

This report includes material from the Associated Press.

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