Supreme Court Won't Hear a Lawsuit Over Defamatory Yelp Reviews (theverge.com)

The U.S. Supreme Court has declined to hear a case regarding whether Yelp is culpable for removing defamatory reviews from its site, resolving a case that could have affected web platforms' legal protections. Today's list of Supreme Court orders denies a complaint brought by Dawn Hassell, an attorney who requested that Yelp take down false, negative reviews about her practice. This means that a California Supreme Court decision will stand, and Yelp isn't liable for the reviews. The Verge reports: Hassell v. Bird was filed in 2016 as a complaint against one of Hassell's former clients, not Yelp. However, Yelp protested a court order to remove the reviews, arguing that it was protected by Section 230 of the Communications Decency Act. (Yelp has said it independently removes reviews it finds to be defamatory since they violate its terms of service.) Lower courts disagreed, but in mid-2018, the California Supreme Court ruled in Yelp's favor. Then, the firm of Charles Harder -- a member of President Donald Trump's legal team who's known for high-profile defamation lawsuits -- petitioned the Supreme Court to hear a complaint against Yelp.

Yelp praised the California Supreme Court's decision last year, calling it a win for "those of us who value sharing one another's opinions and experiences" on the internet. It commended today's decision as well. "We are happy to see the Supreme Court has ended Hassell's efforts to sidestep the law to compel Yelp to remove online reviews. This takes away a tool that could have been easily abused by litigants to obtain easy removal of entirely truthful consumer opinions," a spokesperson told The Verge.

Comments

Good to know

[nospam007]

...that even the Supreme Court hates lawyers.

Some protection against reviews would be nice

[Anonymous Coward]

"I want this meal for free or I'll give a bad Yelp review"

Re:Some protection against reviews would be nice

[Opportunist]

That's what Boris, our PR-man, is responsible for.

He's waiting outside for you to discuss it.

Re:Some protection against reviews would be nice

[v1]

That's part of why they don't want buyers and sellers to be exchanging email addresses, they want to have a record of all communications so they can review them for such abuses if claimed. (the other part of course is they want to prevent people from making deals outside ebay so they don't have to give ebay a cut, but that's just part of the biz)

If you put your email address in a message to seller or buyer, ebay will refuse to send the message. (easy to get around, but they aren't going to fight hard to prevent it, just discourage it)

Re:Some protection against reviews would be nice

[jellomizer]

Nearly every business will get negative reviews. If people are abusing Yelp to try to bully businesses in large numbers, it just means the quality of Yelp as a resource diminishes, and people will stop using it.

I know some business owners have thin skins and cannot take criticism well, and oddly enough when a business owners feel the need to defend themselves too much from a bad review. The criticism is probably justified. Because their EGO is too much to see the problems in front of their face.

But nearly every place will get a bad review. Because everyone has different taste. The food is too spicy, or the food is too bland. could be from food that taste the same from two different reviewers. Also every employee will have an off day, so their service isn't up to what it normally is. And often the reviewer may have different expectations in service. I am not going to a restaurant called the "Pig Pit" and expect 5 star dining experience, but I will want some darn good BBQ Ribs, and access to paper towels to clean myself.

Re:Some protection against reviews would be nice

[Scarletdown]

Thing with eBay is that sellers and buyers get each other's email address once payment is made. It is provided via PayPal and there is really nothing eBay can do about that, since PayPal is not exclusive to eBay and the email address is what PayPal payments are based around.

And even then, there is nothing stopping a seller from adding a business card or a thank you note to the package that has the seller's email address as well as other places they sell. In fact, that ability has been a big boost for me and has actually generated sales on both my eCrater stores and my Etsy store.

Re:Some protection against reviews would be nice

[Impy the Impiuos Imp]

People are far more likely to run to the computer and give a bad review than a good one. And this is independent of deliberate fraud.

Re:Some protection against reviews would be nice

[v1]

Thing with eBay is that sellers and buyers get each other's email address once payment is made. It is provided via PayPal and there is really nothing eBay can do about that, since PayPal is not exclusive to eBay and the email address is what PayPal payments are based around.

Actually there is. Most email providers offer you a way to add an "alias" (or MANU aliases) to your address, that all forward to your mailbox. Simply add an alias for paypal, and set that as your contact address on paypal. If someone starts spamming you after a purchase, you can just change the alias, without the huge inconvenience of changing your main email address. It looks like paypal sends both parties the other's email address when a payment is made though.

And even then, there is nothing stopping a seller from adding a business card or a thank you note to the package that has the seller's email address as well as other places they sell. In fact, that ability has been a big boost for me and has actually generated sales on both my eCrater stores and my Etsy store.

There will always be the possibility of a seller directly contacting you via postal mail if they're shipping you something.

What about fake positive reviews?

[Anonymous Coward]

Aka marketing, PR, the vast majority of all reviews online, and other forms of legalized fraud.

When will the first marketing company go to prison? In its entirety.

Re: What about fake positive reviews?

[Rockoon]

I bet the case had no merit.

I sometimes wonder if companies create weak cases against themselves on purpose to get a favorable precedent set.

Re:What about fake positive reviews?

[necro81]

When will the first marketing company go to prison? In its entirety.

How do you propose to send Yelp, for instance, to prison "in its entirety"? Not to be too pedantic, but you can't send an incorporeal entity like "a company" to prison. I understand the desire (I would even advocate a corporate death penalty in some cases), but it's a physical impossibility. This has both positive and negative effects in our corporation-heavy reality, but there it is.

Re: What about fake positive reviews?

[Oswald McWeany]

I bet the case had no merit.

That's defamation of the complainant!

Re: What about fake positive reviews?

[v1]

I bet the case had no merit.

It's impossible to tell without better information. There's customers that try to use PR threats to get discounts or free stuff (even long before reviewers like Yelp were a thing) just as much as there are sellers that try to get legitimate negative reviews removed.

Both of them are motivated by money, and money's an excellent motivator for fraud.

Re:What about fake positive reviews?

[NicknameUnavailable]

How do you propose to send Yelp, for instance, to prison "in its entirety"? Not to be too pedantic, but you can't send an incorporeal entity like "a company" to prison.

Bad companies are made of bad people.

Re: What about fake positive reviews?

[Impy the Impiuos Imp]

Easily. Turn off their websites, servers, any properties they have. No online activities of any sort. They can come back in 24 months.

How much money did a connected person pay to their congressman to get the market Yelp serves opened wide up?

Re:What about fake positive reviews?

[necro81]

How do you propose to send Yelp, for instance, to prison "in its entirety"?

Bad companies are made of bad people.

You are advocating that we hold workers at a company - probably the corporate officers in the C-suite - personally liable for the company's bad behavior. That is not an unreasonable position, and definitely one that I wish prosecutors availed themselves to more often. However, sending members of a company off to prison is hardly the same thing as imprisoning the actual prison, which is the the GP suggested. Even if you throw all the employees into prison, the company still exists as an entity.

Re:What about fake positive reviews?

[NicknameUnavailable]

You are advocating that we hold workers at a company - probably the corporate officers in the C-suite - personally liable for the company's bad behavior. That is not an unreasonable position, and definitely one that I wish prosecutors availed themselves to more often. However, sending members of a company off to prison is hardly the same thing as imprisoning the actual prison, which is the the GP suggested. Even if you throw all the employees into prison, the company still exists as an entity.

Companies decay naturally without any of the people in them working toward them.

You can bribe Yelp to remove negative reviews

[h33t l4x0r]

Or you can bribe a judge to award the case in your favor. I think Yelp is cheaper though.

And that's fine..

[MikeRT]

So long as Yelp must remove reviews that were ruled to be defamatory. If they don't, then S230 needs to be reformed because no platform should have a right to keep defamatory reviews up after they've been ruled as such in court.

Re:And that's fine..

[Spamalope]

And is it OK for Yelp to promote and emphasize defamatory reviews if the venue hasn't paid Yelp and they're engaged in 'convincing' them to sign up? I've read more than one allegation that when the sales team meets resistance - suddenly there are bad reviews right at the top that could be fixed if you just sign here...

Re:And that's fine..

[bill_mcgonigle]

It's a good principle, but this controversy originated several years ago, before tech companies would just deplatform and/or demonetize anybody and everybody not toeing a leftist power-elite agenda.

We've seen the culture change from not removing accusations against lawyers on Yelp to permabanning peace activists on Twitter (e.g. Scott Horton).

Until some fully-decentralized platforms show up this is going to be the new normal. Big Valley is Watching.

Re:And that's fine..

[Wrath0fb0b]

So long as Yelp must remove reviews that were ruled to be defamatory. If they don't, then S230 needs to be reformed because no platform should have a right to keep defamatory reviews up after they've been ruled as such in court.

Agreed in principle. That said, there is an interesting (read: sneaky) set of cases around this principle.

1. Plaintiff goes to "reputation management" company to remove bad reviews
2. Reputation management company recruits someone to be the defendant
3. RMC sues the 'defendant', which then admits to making the post (they didn't) and that it was defamatory (maybe it was) and settles for a small sum. This suit, however, isn't the point
4. RMC goes to Google/Bing/Yelp with the court order now that it has been "ruled defamatory". By policy, many will remove or de-index it.

For one, the human capacity for ingenuity is astounding. Using a straw defendant to get a court ruling to satisfy Google's policy of "we will remove anything a court has found defamatory" is pretty next-level thinking. The courts are happy to vacate those orders when someone shows up with proof of the fraud (and more, some of the companies were fined $100K or so), but that requires someone to notice and investigate. Prosecutors sometimes catch wind too and can bring charges, but again that requires it being brought to their attention. Legal gadflies might do this pro-bono (and to rightfully troll the RMCs), but that's hardly a foolproof system. Ultimately, I don't have much of a good answer. Yes, Google and Yelp should de-index material when it has been found defamatory in a fair court case. How Google and Yelp are supposed to assess whether the court order is the product of fraud or not, when they get thousands of them is beyond me . . .

Re:And that's fine..

[Shotgun]

Another way is for reader to not trust reviews. I'll often spend significant time reading reviews to determine the truth. It turns out that the fake reviews are generally very easy to spot, as they lack detail or are not consistent with the other reviews.

Re:And that's fine..

[Pascoea]

I personally concentrate on the 2-4 star reviews if I want to get a reasonable impression if a business/product. 1 star reviewers I generally find have an ax to grind, and 5 star reviews are usually just lazy.

Re:And that's fine..

[MooseTick]

"RMC sues the 'defendant', which then admits to making the post (they didn't)"

Your plan is to find people willing to knowingly lie to a court about something that could be fairly easily provable. That just turned a civil case to a criminal one and that 'defendant' could potentially face years in Federal prison for fraud, lying to the court, falsifying evidence, and likely more.

I agree "the human capacity for ingenuity is astounding", but good luck finding someone willing to risk prison to protect some business' online identity. Also, this would have to be a one time thing to work. No one could repeat this without being caught.

Re:And that's fine..

[Wrath0fb0b]

It actually happened, so there is at least an existence proof that someone had good luck finding a straw defendant.

Facts do be like that sometimes.

Yelp is already garbage, yet people still use it

[raymorris]

> the quality of Yelp as a resource diminishes, and people will stop using it.

Which reviews Yelp chooses to show is based on whether or not the business pays Yelp, so it's already complete bull. Yet people still use it. Presumably they are unaware that it is strictly an advertising platform.

If you want to see for yourself, post a review of business that doesn't exist, one you completely made up. Include the phone number of the "business" (your phone number). Enjoy talking to the Yelp thugs^H^H^H^H salespeople when they call you.

You've got it backward. Court already ruled libel

[raymorris]

You've got it backward. The plaintiff won the defamation case; it's been proven that the review was false. That part of the case was done and over with, they went to court and proved it is false and defamatory, libel.

Yelp's position is "yeah it's it's libel, so what? We don't have to remove it unless she pays us for advertising."

The law they are relying on is designed to protect Yelp (and Slashdot) for being sued for damages over the content of what people post - you can't sue Slashdot if I give bad security or legal advice here. The legal term is "liability", Slashdot isn't liable for any damages you have from my bad advice. Yelp argues that because they can't be sued for money damages, a court can't order them to remove the libelous post. Or more accurately, the court can order them to, but they can ignore the court and the court can't do anything about it.

I would say they *can* be penalized for contempt of court, they say such a penalty would be holding them liable for the content of the review. They can't judge the truth of each review, they say Not so, I say - they don't have to even read the review. They can just follow the court order and remove any review that the court orders them to remove. From their position, it doesn't matter what the review says. The court already ruled that the review is false and defamatory, nobody is asking Yelp to make that determination. Plaintiff is asking Yelp to do what the court has ordered them to do and remove it.

This is sad

[DarkOx]

This is probably a key question the court really should
1) take up
2) issue an expansive ruling on

We really need to nail down just exactly when you are a publish responsible for the content editorial or otherwise in your publication and when you are a platform

The present body of the law is IMHO a bit ambiguous. We have a number of giant concerns that grew up by being platforms but increasingly adopt behaviors that are more and more publication like while still claiming their protection as platforms. They then hide behind algorithms that at one point might have been neutral but now are clearly tinkered with actively to obtain outcomes more palatable to their leadership; for good or ill.

YELP here is a good example their model is basically pay us and we make sure more favorable reviews about you business get more eyeballs. Oh sure you can use the legal system to get out right defamatory content removed but in lots of cases just policing the various platforms for that is a chore; and the safe harbors these sites enjoy are simply to expansive in that even if you can get courts to make them stop defaming you, there is little ability to recoup any damages.

The near total lack of accountability of these entities is largely responsible for the absolutely corrosive political and social atmosphere that is rapidly taking over. There needs to be limits put in place on what these guys can do in terms of choosing what content to promote, how often they can disseminate it, and to what degree they pass on the civil responsibility for it thru to authors. I understand the Courts reluctance to rule on these cases using existing laws. Judgements shoehorning YELP, facebook, Twitter, Google, et al onto law body developed for news papers, television/radio broadcasters, telephone operators and the like is far from ideal. The trouble is the legislative organs of our government wont do a damn thing about this because they think the mobs mentality these guys create is useful to them getting reelected; and that goes for both sides of the isle.

The big fish get to issue some token apology and are offered a do-over when they are on the wrong end of things, or they can parlay the situation into one of - there is no such thing as bad publicity. That works if you are Donald Trump, Kevin Hart, or Elizabeth Warren, it does not work so well if you are Joe/Jane Sixpack

Re:This is sad

[Solandri]

This is probably a key question the court really should
1) take up
2) issue an expansive ruling on

Refusing to take on a case doesn't necessarily mean the Supreme Court agrees with the lower court's opinion. If the case brings up new issues (as this one seems to do), they will often refuse to take the case simply to allow more time for other courts in other districts to get similar cases. Unless it's a time-critical issue (e.g. the 2000 Florida recount in the Presidential election), the Supreme Court doesn't like to issue decisions from a vacuum. They like the issue to kick around and stew in lower courts for years if not decades, so lots of lawyers and judges can make and refine arguments pro and con. That way when they finally accept a case, the issue has been well-argued and well-thought-out, little risk of someone thinking up a new argument which suddenly turns it around. And all they have to do is decide which argument is best.

You have to understand that Supreme Court rulings are binding across the entire country, and frequently last for several decades if not forever. They're well aware of the near-permanence of their decisions, and wield that power very carefully. Even if they disagree with a lower court's decision, better to let it stand for a few years to give other courts more time to ruminate of the issue. Then when they finally take it up, they can make a better-informed lasting decision. It's their version of measure twice, cut once.

Re:This is sad

[DarkOx]

I agree with all that. But my problem at this point is that we HAVE a problem. This platforms constitute and emergency for our society. I think a lot people don't realize how serious a problem this actually is right now.

Its a frog in the pot, type situation. We have got used to this stuff over time. If you plucked someone out of 2008 and showed them the events of 2016-19 so far they'd be be shocked at how web 2.0 is used and its impacts on our society and individuals. Yet by 2k8 web 2.0 was pretty well definable.

I think the courts have had a decade to play with this and it has gone to trial in a number of lower courts, who have applied various existing laws. The legislative branch isn't going to solve the problem, they have had a decade to act. The SCOTUS has a cases to review but they are never going to get some petridish examples of decisions and outcomes because these are global scoped companies.

Re:You've got it backward. Court already ruled lib

[alvinrod]

I can see what Yelp is against this, but I would think that they may want to be open to working with people in cases like these, because I as a potential consumer can't have as much confidence in the services that Yelp provides if I know that they may have reviews that even a court found to be outright libelous.

I think Yelp is kind of worthless as a service for this reason in a more general sense. It's always going to be subject to spam and fake reviews from people wanting to game the system or with an axe to grind. I've found that the best way to find a good place to eat if you're in an unfamiliar place is to just ask a local.

That's why I only read the negative reviews

[Solandri]

It's too easy to game the system using positive reviews. It's possible to game it using negative reviews (of your competitors' products), but it's harder to do. And if the reasons listed in the paid negative review are legitimate (e.g. restaurant's seating area is limited and crowded), then it's still useful information.

In Yelp's case, the negative reviews also make it relatively easy to tell when a company has paid Yelp to scrub its reviews. Yelp doesn't seem to be very discriminating and seems to just remove all the negative reviews. Everything picks up negative reviews no matter how good it is. So if a company's Yelp reviews seem strangely devoid of negative reviews, I know they've paid to have their Yelp profile scrubbed. And I can just disregard their Yelp rating and rely on other review sites.

Amazon seems to have picked up on this practice though. They've made it increasingly difficult to see only the negative reviews. You used to be able to do it by clicking on the "see all critical reviews" link on the product's main page at the top of the reviews. It was in the middle of the page, but easy to get to by clicking "customer reviews" at the very top. So page load, two clicks, and you got just the negative reviews.

Then they changed it so you first had to click "see all reviews" before you could filter to see only the negative reviews, but it was still located in the same spot you got to by clicking "customer reviews" at the top of the page. So it just added an extra click and page load.

About a month ago they changed it and moved the "see all reviews" link to the bottom of the reviews instead of at the top. So now you have to click "customer reviews", scroll to the bottom (or hit ctrl-end to go to the bottom of the page and scroll up), click "see all reviews", then click on "see all critical reviews" in order to get just the negative reviews. I'm starting to think it may actually be easier to just write an extension which does all this hoop-jumping for me.

Re:You've got it backward. Court already ruled lib

[Pascoea]

Any review system that involves money changing hands between the platform and the place being reviewed can't be trusted.

Re:You've got it backward. Court already ruled lib

[raymorris]

> I as a potential consumer can't have as much confidence in the services that Yelp provides if I know that they may have reviews that even a court found to be outright libelous.

The reviews that Yelp chooses to show are strongly influenced by whether the business pays Yelp for "advertising" (extortion). You should have no more confidence in Yelp than you have in any other advertisement.

Re: Misleading headline?

[Impy the Impiuos Imp]

At best it will be a push as Congress will pay all working workers, as the Constitution requires (all debts are valid) and, based on past history, will pay all furloughed workers for non-work, effectively giving them paid vacation, something essentially all are willing to put up with, even the whiners in news pieces.

So financially a push but even bloated wasteful government isn't gonna get the full bang for its buck, so a loss.