Antitrust Law Daily Wrap Up, ADVERTISING—9th Cir.: Yelp immune from claims under Communications Decency Act, (Sep 12, 2016)

By Greg Hammond, J.D.

Crowd-sourced reviews website operator Yelp! Inc. was a provider of interactive computer services and immune under Section 230 of the Communications Decency Act (CDA) from Racketeer Influenced and Corrupt Organizations Act (RICO), consumer protection, and libel claims arising from the content created by third parties on Yelp’s website, the U.S. Court of Appeals in San Francisco has held. A lower court’s order dismissing a locksmith’s action, which alleged that Yelp was liable for two negative business reviews posted on the company’s website, was consequently affirmed (Kimzey v. Yelp! Inc., September 12, 2016, McKeown, M.).

Yelp provides a forum for members of the public to read and write reviews about local business, government services, and other entities. The locksmith’s complaint centered on two negative business reviews posted on Yelp’s website about his business. He claimed that Yelp in effect created and developed content because it caused a review from another site to appear on its page, provided a star-rating function that transformed user reviews into Yelp’s own content, and caused the statements to appear as a promotion on Google’s search engine. The district court dismissed the locksmith’s RICO, consumer protection, and libel claims, finding that Section 230 of the CDA immunized Yelp from the entirety of the locksmith’s lawsuit and that the locksmith did not allege non-conclusory factual content that was plausibly suggestive of a claim entitling him to relief.

CDA immunity. Section 230 of the CDA protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.

The appellate court determined that Yelp was plainly a provider of an interactive computer service, and that there was no question that the locksmith’s claims were premised on Yelp’s publication of the negative reviewer’s statements and star rating. The only remaining question was whether the information was provided by another information content provider.

Yelp was not an information content provider, according to the appellate court. In particular, the court noted that the locksmith never specifically alleged that Yelp authored or created the content of the statements posted by the reviewer. Instead, the complaint asserted that Yelp adopted the statements from another website and transformed them into its own stylized promotions on Yelp and Google. These "threadbare allegations of fabrication of statements" were implausible on their face and were insufficient to avoid immunity under the CDA, the appellate court concluded.

The locksmith also argued that Yelp transformed the negative review into its own "advertisement" or "promotion" on Google and featured a unique star-rating system as the mantelpiece of its creation. These characterizations, according to the court, had superficial appeal, but extended the concept of an "information content provider" too far and would render the CDA’s immunity provisions meaningless. The court therefore concluded that the proliferation and dissemination of content did not equal creation or development of content.

The cases are Nos. 14-35487 and 14-35494.

Attorneys: Douglas L. Kimzey, pro se. Venkat Balasubramani (Focal PLLC) for Yelp! Inc.

Companies: Yelp! Inc.

Cases: Advertising ConsumerProtection RICO AlaskaNews ArizonaNews CaliforniaNews HawaiiNews IdahoNews MontanaNews NevadaNews OregonNews WashingtonNews