Ninth Circuit Criticizes Attempts to Plead Around Section 230–Kimzey v. Yelp

7 02 2017

[Note: Venkat represented Yelp in this case but was not involved in the preparation of this post.]

For all of the drama associated with Section 230 jurisprudence this year–including in the Ninth Circuit–it’s easy to forget that Section 230 still works well in simple cases when a plaintiff tries to hold a website liable for third party content. So it’s refreshing to get a straightforward Section 230 case that reaches the expected result. And it’s especially gratifying to see a court recognize–and reject–efforts to plead around Section 230.

The Opinion

Kimzey is a locksmith operating as Redmond Locksmith a/k/a Redmond Mobile Locksmith. “Sarah K” left a negative Yelp review of the business. Kimzey sued Yelp pro se. The district court easily tossed the lawsuit. The Ninth Circuit affirms.

Case citation: Kimzey v. Yelp!, Nos. 14-35487 & 14-35494 (9th Cir. Sept. 12, 2016)

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The content in this post was found at http://blog.ericgoldman.org/archives/2016/09/ninth-circuit-criticizes-attempts-to-plead-around-secton-230-kimzey-v-yelp.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Yelp fighting court order requiring it to remove negative review

7 02 2017
California’s top court is agreeing to hear a case in which a lower court has ordered Yelp to remove a bad review. The California Supreme Court did not say when it would hear the case that tests the Communications Decency Act, which San Francisco-based Yelp maintains protects it from having to remove content on its site posted by third parties.

The case concerns a June decision by a state appeals court that requires Yelp to remove a defamatory review about a law firm written by an unhappy client. A lower court issued a default judgement for over $500,000 against the reviewer, Ava Bird, for a review that the law firm claimed was defamatory. Bird was sued for defamation, but was a no-show in court.

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The content in this post was found at https://arstechnica.com/tech-policy/2016/09/yelp-fighting-court-order-requiring-it-to-remove-negative-review/and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



it is now illegal to punish customers who criticize businesses online

7 02 2017
[Ed’s note: this bill passed and was signed into law in dec. 2016]
Congress has passed a law protecting the right of US consumers to post negative online reviews without fear of retaliation from companies.

The bipartisan Consumer Review Fairness Act was passed by unanimous consent in the US Senate yesterday, a Senate Commerce Committee announcement said. The bill, introduced in 2014, was already approved by the House of Representatives and now awaits President Obama’s signature.

The Commerce Committee held a hearing on gag clauses a year ago and said it heard “testimony from Ms. Jen Palmer, a plaintiff in Palmer v. KlearGear, where a company demanded the removal of a negative online review or payment of $3,500 in fines because the online merchant’s terms of service included a non-disparagement clause. When the review was not taken down, the company reported the unpaid $3,500 to a credit reporting agency as an outstanding debt, which negatively impacted the Palmers’ credit.”

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The content in this post was found at https://arstechnica.com/tech-policy/2016/11/congress-passes-law-protecting-right-to-post-negative-online-reviews/and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Yelp Isn’t Liable For User-Submitted Photos Of Businesses–Albert v. Yelp

25 01 2017

The last time I blogged about a lawyer who sued Yelp for defamation, I spilled 3,000 words (and shed many tears). Fortunately for my mental health and your reading queue, I’m pleased to report that today’s case has better–and more succinct–news.

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.

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Case citation: Lenore Albert v. Yelp, Inc., G051607 (Cal. App. Ct. July 15, 2016)

The content in this post was found at http://blog.ericgoldman.org/archives/2016/07/yelp-isnt-liable-for-user-submitted-photos-of-businesses-albert-v-yelp.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Review Website Gets Hammered In Court–Consumer Cellular v. ConsumerAffairs

22 01 2017

[Ed’s note: don’t forget while reading these that Eric is a staunch advocate for 230. He may be right and he’s always consistent. We usually disagree; I tend to think that 230 protections are overly broad and should be changed legislatively or reigned in judicially]

This is not a good opinion for the review website industry. However, the court’s harshest treatment turns on the idiosyncratic practices of ConsumerAffairs.com, which set a key Fourth Circuit Section 230 precedent in 2009 but whose current business practices probably aren’t going to impress you. Although I’m not normally an optimist, I’m hoping this opinion will create minimal collateral damage for review websites that have more traditional editorial and commercial practices. Still, it’s a bad opinion and can be counted as another entry in Section 230’s grim year.

A preliminary note about the ruling’s procedure

ConsumerAffairs brought an anti-SLAPP motion to strike pursuant to Oregon’s anti-SLAPP law, a robust law similar to California’s. The court denied the anti-SLAPP motion entirely. Losing an anti-SLAPP motion to strike normally doesn’t dictate that the defendant will ultimately lose the case. However, in this case, the magistrate report is so harsh and unforgiving towards ConsumerAffairs that it has to be wondering how it can win in the district court.

My blog post analyzes the magistrate’s report from the end of February. Two weeks ago, the trial court summarily affirmed the magistrate report.

The Ruling

Consumer Cellular (CCI) is a cellphone provider. ConsumerAffairs claims to be a review website:

ConsumerAffairs is a consumer news and advocacy organization founded in 1998 by James R. Hood, a veteran Washington, D.C. journalist and public affairs executive. Our website includes consumer news, recall information and tens of thousands of pages of consumer reviews.

However, as recapped by the judge, ConsumerAffairs’ alleged operations sound odious (these are allegations; and paragraph returns added for clarity):

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Case citation: Consumer Cellular, Inc. v. ConsumerAffairs.com, 3:15-CV-1908-PK (D. Ore.). Magistrate report, 2016 WL 3176602 (Feb. 29, 2016). Trial court adoption of magistrate report (June 2, 2016).

The content in this post was found at http://blog.ericgoldman.org/archives/2016/06/review-website-gets-hammered-in-court-consumer-cellular-v-consumeraffairs.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.