Sorry, You Still Can’t Sue Yelp for That Bad Review

Federal law protects social media sites and other interactive computer services from being sued for content posted by users. This protection doesn’t apply to services that also create content. A recent case from a federal appellate court, Kimzey v. Yelp! Inc., No. 14-35487 (9th Cir, Sept. 12, 2016), <http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/12/14-35487.pdf>, confirms that copying posts from other sites is not creation of content.

Mr. Kimzey, upset about negative reviews of his business that he believed were planted by a competitor, sued Yelp. Realizing that Yelp was protected, he tried to claim in his complaint that Yelp created content by allowing comments from other sites to appear on Yelp, including a five-star rating system for users to include in their reviews, and reposting reviews to Google as advertising.

The Court of Appeals decided that wasn’t enough, ruling that Mr. Kimzey hadn’t included enough information in his complaint to go forward. The first argument raised by Mr. Kimzey was that the reviews were copied from another site. The court ruled that in order to make such an argument Mr. Kimzey would have had to allege (and later prove) that Yelp had actually created the post. In addition, because of the highly protective nature of the federal law, Mr. Kimzey would have had to allege facts that would give a reason to believe that Yelp did create the post.

Mr. Kimzey’s second argument was that Yelp’s five-star rating system and the act of advertising the reviews on Google searches were enough to be considered a creation of content, which would get around the protective law. The court concluded from its rulings in several earlier cases that to create content, one must materially contribute to the creation or development of the content. It ruled that neither of Mr. Kimzey’s arguments reached that level. The rating system was ruled not to be the product of material actions by Yelp because it was only a combination of the reviews of numerous users. Reposting the reviews on Google also wasn’t created by Yelp because it didn’t change the original nature of the posts. They were created by an unidentified user without Yelp’s input.

If you’re upset about a negative review on Yelp or a similar web site, you probably can’t sue that site. You might be able to go after the poster if you can identify them and if you can prove the post was fabricated. If you can find evidence of fabrication you might be able to get the poster sanctioned by the site, but you may not be able to get the original post removed. The Internet still has a Wild West atmosphere, and it can be hard to protect yourself at times.

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