A false Yelp review can be devastating to a business. There are a number of factors that vary the impact of a false review, including of course the nature of the false review, and the number of honest, positive reviews to offset it. But a recent study determined that a single false Yelp review can cut a business’s gross income by 20%. I personally have seen situations involving businesses with few reviews are put out of business by false reviews.
Unfortunately, Yelp thrives on negative reviews. A big part of Yelp’s income comes from businesses that pay to subscribe to Yelp’s business services. Most of the incentive for wanting to pay Yelp comes from a desire to set forward a better image on Yelp, and for that Yelp needs negative reviews. A business with nothing but positive Yelp reviews is less incentivized to pay Yelp.
It is NOT true that paying Yelp will allow removal of negative reviews, or that failing to pay Yelp results in removal of all positive reviews, at least not directly. I don’t believe that there is a secret manual within Yelp, instructing its salespeople to retaliate against businesses that refuse to sign up for Yelp’s services, but I have received too many calls from potential clients, complaining that is just what happened, to believe that it is mere coincidence.
The story is always the same. The business was going along, singing a song, with nothing but positive Yelp reviews. Then, out of the blue, two or more negative reviews appear, usually blatantly fake in nature, because the “reviewers” complain about some product or service the business does not even offer. In one instance, the caller to our office received two fake reviews in two days, both using names of famous athletes.
Yelp undoubtedly has a mechanism that notifies its salespeople when a business has received negative reviews, because shortly after these fake reviews appear, the business receives a call from Yelp’s sales department, noting the negative reviews, and explaining that while paying $500 per month to Yelp will not enable the business to remove these negative reviews, it will give the business more control over its “Yelp presence”, including the elimination of ads from competing businesses on that business’s home page.
If the business respectfully declines, it is then that the business’s positive reviews are filtered, or so has been reported to us over and over and over.
My theory, giving Yelp the benefit of the doubt, is not that Yelp is retaliating, but that this sales process brings a human being into the equation, instead of just Yelp’s algorithm. Under Yelp’s “rules”, reviews are supposed to be entirely organic, and not the result of improper encouragement from the business. Perhaps in looking at all those positive reviews, said human being notices that many were posted in the same week, possibly indicating that there was some incentive provided that week for Yelp reviews. Or perhaps it is noticed that many of the reviews refer to the owners by name. Would so many people eating at a restaurant really know the owners’ names? Perhaps these raise red flags, and legitimate or not, it is decided that these positive reviews should be filtered.
It is because of this sequence of events that so many people believe that Yelp is somehow responsible for the negative reviews, and that the removal of positive reviews is done to punish business that don’t subscribe.
But whatever the reality may be, the undeniable fact is that fake reviews are posted on Yelp. We have repeatedly uncovered “fake review mills”, ranging from disgruntled former employees to full time staff members, hired to post negative reviews about competitors.
Only false reviews need apply.
As I have stated here many times, although wrongdoers have been able to use it as a shield, the Communications Decency Act (“CDA”) is an essential statute if we want to live in a country where one can freely offer their opinions about products and businesses.
But I have also argued for a simple fix to the abuses of the CDA. If someone posts a defamatory review on Yelp, the CDA prevents any legal action against Yelp; only the person who posted the comment is liable for the defamatory comments. Fair enough. If Yelp could be made to research every review the subject of that review claims is defamatory, it could not exist, and the process of finding a good sushi restaurant would be made far more difficult.
But would it be so burdensome to require Yelp to take down a review, AFTER a court has determined that review to be false and defamatory? It is a long and arduous journey to take a case to trial and prove that a review is defamatory. There would be very few judgments coming out the other side of that process, and hence very few posts Yelp would need to take down. Indeed, Yelp should embrace such an approach, because it claims to want only legitimate reviews. If after presentation of evidence, a court has determined that a review posted on Yelp is false, Yelp should be thrilled that a false review was rooted out and jump to remove it.
The CDA is a necessary evil, but it makes no conceptual sense that after the person who posted the comment has been found to be liable for defamation, that the post can remain, still damaging the reputation of the plaintiff. At least in the case of Yelp, the court can order the defendant to remove the post, and the defendant has the ability to do so, but what about sites like Rip Off Report, where the site prevents the defendant from removing his own post? I have long called for a mechanism to force sites to remove defamatory posts after a court has found them to be so.
Finally, a Court in San Francisco apparently heard my plea, and entered a judgment ordering Yelp to take down a post. The conventional wisdom has always been (1) you can’t get a court to order an injunction against Yelp since it is not a party to the action, and (2) obtaining such an order would violate the CDA, because is somehow amounts to finding liability against Yelp.
But I have long railed against that conventional wisdom. Continue reading
Picture a typical fight on the playground at an elementary school. One child gets mad at another because she lost at tetherball, so she screams, “I don’t like you and nobody else does either!” It’s not hurtful enough for the girl to say that she doesn’t like the other girl, she seeks to add credibility to her argument by speaking for the rest of humanity.
Some people never grow up. I get calls from potential clients, needing me to defend them against a defamation action for a review they posted on Yelp. A call I received today illustrates why these people find themselves being sued for defamation. Changing the facts to protect the confidentiality of the client, here is what happened:
The caller hired a contractor to add a room to her home. The contractor did his thing, but the caller wasn’t happy with the result. She then paid another contractor to come in and do the work the way she thought it should have been done. Then she sat down at her computer to tell the world via a Yelp review what she thought about the first contractor.
She wrote about her experience with the contractor, and why she was unhappy with the work he did. So far so good. I would defend to the death her right to post that review.
But like the girl on the school yard, a dry dissertation of the problems is just not stinging enough. Someone might still do business with this contractor, and she owes the world a duty to make sure that the no good, son-of-a-gun never gets another job. Continue reading
I get probably two calls a month from potential clients, complaining that after they refused to subscribe to Yelp’s services, Yelp responded by removing most or all of their positive reviews. If true, then Yelp cannot seriously contend that it is interested in the integrity of its reviews.
The claims seem supported by a recent action by Yelp. In this case, a small San Diego law firm, the McMillan Law Group, subscribed to Yelp’s services, allegedly based on representations that were made about the number of page views it would receive. When the results fell below what the McMillan Law Group says was promised, it demanded a refund. Yelp balked, and the law firm sued in small claims court. The firm prevailed, and obtained a $2,700 judgment against Yelp.
“The McMillan Law Group, a San Diego law firm specializing in bankruptcy, exemplifies the behavior that Yelp combats daily through its algorithms and investigations—the planting of fake reviews intended to sway potential clients with false testimonials. The McMillan Law Group’s efforts to mislead consumers are particularly brazen and disappointing given they have targeted some of the most vulnerable consumers of all—individuals who may be facing bankruptcy and who are looking for potential legal representation.”
In the complaint, Yelp details its investigative results, alleging that multiple Yelp user accounts were created from a computer located at the same McMillan Law Group IP address used to create reviews about that law firm.
In an interview with Bloomberg Law, Julian McMillan stated, “It’s bullying tactics. I get it. They want me to spend some money but I just don’t see how they come a winner in this [from a PR standpoint].”
As McMillan also notes, Yelp’s lawsuit seems like a really bone-headed move from a discovery standpoint. Since Yelp is claiming that false reviews by the McMillan Law Group have interfered with its contractual relations and caused it damages, it has now made all of its business practices and income fair game for discovery. It will also be very interesting to learn whether Yelp routinely brings such lawsuits to maintain the integrity of its reviews, or does so only in response to being sued.
For a detailed discussion of the love fest between Yelp and the McMillan Law Group, see the article at Bloomberg Law.
Kudos to Karl Kronenberger for concisely capturing the characteristics of Internet defamation.
I was interviewed today for the syndicated radio show Culture Shocks on the topic of Internet defamation, and the possible chilling effect on free speech by lawsuits against those who publish defamatory comments. The host, Barry Lynn, was very even-handed, but I again found myself being cast as the anti-free speech proponent because I am not opposed to suing those who defame others on the Internet. During such interviews, when I explain that there are “serial defamers” who post false reviews to extract revenge for a perceived slight, or to bash the competition, I am usually met with skepticism.
In his piece entitled Defamation Superhighway, published in the Forum section of today’s Los Angeles Daily Journal, Kronenberger observed: “Despite this great number of prolific and legitimate reviewers, we cannot put our collective heads in the sand and deny that review sites draw some consumers who use them for unlawful purposes under the guise of legitimate free speech. . . . Also, business competitors can post negative reviews while posing as disinterested consumers.” He correctly points out that yelp.com, for example, further enables defamatory content by providing no mechanism for the victim to respond.
As I have explained in greater detail in prior posts, I don’t desire passage of a law that requires review sites to investigate claims of defamation. Such an approach would be unworkable in most instances, since every legitimate post that happened to be negative would be met with a cry of “defamation!” But if the review sites don’t want defamation attorneys to become the Internet Police, then they must permit the users to fill that role. That would include permitting the victim of a defamatory post to respond contiguously with the original post, not as a separate, far-removed post.
I’m reminded of the stereotypical boxing referee you see in the movies. Before the fight, he says to the boxers, “I want a clean fight boys. Keep it clean.” Let the boxers have at each other on review sites, but if you are going to stand back while one hits the other below the belt, then we defamation attorneys are going to step in.
Yelp is based in San Francisco and is viewed there as a favored son for some reason. When someone dares to challenge Yelp or its postings, many of our Northern California neighbors get exercised. I received several calls from media outlets over the past couple of days, seeking comment on the case of Steven Biegel v. Christopher Norberg, an Internet defamation case involving Yelp.com.
The simple facts are these. Norberg was treated by Biegel, a Chiropractor. Norberg was told the treatment would cost a certain amount if he was paying for it out of his own pocket, but his insurance company was allegedly billed at a much higher rate. This apparently bothered Norberg, so he posted a review on Yelp.com, giving Biegel just one star and questioning the honesty of his billing practices. When Biegel complained about the review, Norberg replaced it with a new entry, accusing Biegel of attempting to harass him into silence. Biegel then responded by suing Norberg for defamation. The trial is set for March 2009.
Note that Yelp is not being sued, only the person that actually posted the allegedly defamatory statements. Nonetheless, many are bothered by such a lawsuit, concerned that it will have a chilling effect on the willingness of people to post their views on sites such as Yelp.com and Citysearch.com. Some have suggested to me that just as the website is immune from liability for anything said by visitors, that immunity should be extended to the visitors as well.
I fought at the forefront of cases involving the Communications Decency Act, which shields website operators from liability for the comments of others, because that make infinite sense. We would not have open forums and dialog on the Internet if the website operators had to fact check every comment posted.
But on the issue of whether those who post the comments should be protected, I find myself cast as the curmudgeon, seeking to stifle freedom of speech. Here is how the San Francisco Chronicle quoted me:
“Sites that are seemingly well intended are turning into wastelands of defamatory and unspecified allegations,” said Aaron Morris, a partner with Morris & Stone LLP in Orange County who is not involved in the case. “There needs to be some sort of blowback against unfettered speech. People should be able to go on and say, ‘That’s not a true statement about me, and I need to be able to attack this.’ “
If everyone played nice, review sites would not be a problem. But they don’t. Suits against those who post defamatory statements won’t chill free speech, but they will chill defamatory speech, and that’s a good thing. You see, those seemingly helpful reviews you are reading on line are being gamed big time, and there must be a means to fight back. I receive calls every day from businesses that are being falsely trashed by competitors. In one case it was discovered that a company had employed a full time defamer (my designation, not theirs), whose job was to spend all day every day, creating false identities in order to post false reviews, blogs and websites about competitors. I’d love to say that it will all come out in the wash; that a good business will receive enough good reviews to override the false statements, but that is not the case. Whereas a legitimate reviewer will post their remarks and go about their business, these professional defamers utilize SEO methods to move the defamatory blogs and websites to the top of the heap. Honest reviews don’t stand a chance against the bogus ones.
So what about the Norbergs of the world, who just want to post their comments without fear of legal action? Yes, the target of the criticism can file an action, but he will pay a heavy price if the posting was not defamatory. The poster can first respond with a simple anti-SLAPP motion, which stops everything including discovery and allows the court to determine whether the speech was protected and whether the plaintiff has a chance of prevailing. If the motion is granted, the plaintiff pays all of the poster’s attorney fees. He’ll then come to me, and we’ll file a SLAPP BACK action, suing the prior plaintiff for malicious prosecution, winning the poster millions of dollars and me a beach house (individual results may vary). Now who is chilled?