Yelped ̶ what Is the Best Response to Negative Online Reviews
| Publication year | 2017 |
| Author | By Steven Krongold |
By Steven Krongold
Steven L. Krongold specializes in business litigation. For the past 30 years, Mr. Krongold has litigated disputes involving trademarks, copyrights, trade secrets, invasion of privacy, cybersquatting, investment fraud, defamation, and other business-related torts. Mr. Krongold can be reached at the Krongold Law Corp., P.C., located in Orange County, CA.
Attorneys are not immune from the new phenomenon of negative online reviews posted anonymously. The number of such websites has proliferated in recent years to include Yelp, Avvo, Yahoo!, Yellow Pages, Glassdoor, and Citysearch. These websites scour public databases and, without consent, list attorneys, accountants, doctors, dentists, real estate agents, and other professionals. The websites then give members of the public the ability to create accounts and critique the professional without any editorial oversight. Many online reviews make accusations of fraud, gross negligence, and even criminal conduct. Not surprisingly, professionals are fighting back. This article explores best practices when you or your client(s) become victims of defamation posted anonymously.
Professionals defamed anonymously have limited options. Congress passed a law giving civil immunity to "interactive computer services," most commonly websites that publish content created by third parties. The statute appears in Section 230 of the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c). Congress was motivated, in part, to promote the free exchange of information and ideas over the Internet. The CDA shields from liability all publication decisions, whether to edit, to remove, or to post, with respect to content generated entirely by third parties. (Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1105 (9th Cir. 2009).) Websites are therefore careful to avoid creating or editing material. They would lose statutory immunity if found "responsible, in whole or in part, for the creation or development of the offending content." 47 U.S.C. § 230(f)(3).
The Ninth Circuit recently rejected a creative attempt to plead around the CDA's civil liability shield. In Kimzey v. Yelp! Inc., 21 F.Supp.3d 1120 (W.D. Wash., 2014), aff'd 2016 U.S. App. LEXIS 16665 (9th Cir. 2016), plaintiff alleged that Yelp designed and created its signature star rating system, and thereby served as "author" of the one-star rating which conveyed content. Plaintiff further alleged that Yelp transformed the review into its own advertisement or promotion on Google, featuring the unique star-rating system. The Ninth Circuit refused to accept this argument, stating: "We fail to see how Yelp's rating system, which is based on rating inputs from third parties and which reduces this information into a single, aggregate metric is anything other than user-generated data." (Id. at * 13.)
Since the defamation victim cannot sue the website that fails to take down the damaging statements, the only option available is to pursue remedies against the author. Identifying the author thus becomes a top priority. Proper identification enables the victim to send a cease and desist letter. Many times the author's...
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