Yelp Wins Fight to Post False and Defamatory Reviews
In reading the California Supreme Court’s decision in Hassell v. Bird, which just came out today, an expression by my father-in-law came to mind. He was a real, honest-to-goodness cowboy, and when asked how things were going, he would often answer, “Well, I’m just stepping in cow dung with one boot and knocking it off with the other.” [He didn’t actually use the word “dung.”]With today’s opinion, Yelp temporarily knocked off some dung, but stepped right back in it.
Hassell v. Bird involved an attorney by the name of Dawn Hassell and her firm the Hassell Law Group. Hassell’s April 2013 complaint arose out of Hassell’s legal representation of a client named Ava Bird for a brief period during the summer of 2012. The complaint alleged the following facts about that representation: Bird met with Hassell in July to discuss a personal injury she had recently sustained. On August 20, Bird signed an attorney-client fee agreement. However, on September 13, 2012, Hassell withdrew from representing Bird because they had trouble communicating with her and she expressed dissatisfaction with them. During the 25 days that Hassell represented Bird, Hassell had at least two communications with Allstate Insurance Company about Bird’s injury claim and notified Bird about those communications via e-mail. Hassell also had dozens of direct communications with Bird by e-mail and phone and at least one in-person meeting. Continue reading
WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS
Since free speech and internet defamation are our primary practice areas, and since it is a rather niche practice, we get many calls and emails from businesses that have been defamed by a false Yelp review. We also get may calls from those who have posted Yelp reviews and have been threatened with legal action, but that is an article for another day. For purposes of his article, I will discuss . . .
WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS
I wrote a similar article two years ago, but I want to update and expand on what I said previously, attempting to provide a more all encompassing review of your options when dealing with a false Yelp review.
This only applies to verifiably false and defamatory reviews.
I repeat this message over and over again on this blog, but so as to make this a standalone article, let me express again that if someone writes a critical but honest Yelp review about your business, I won’t help you to get rid of it. Nothing to see here. Move along. The marketplace of ideas is not promoted with defamatory speech, but neither is it promoted with censorship.
Note also that a review isn’t actionable just because it is false. If someone says you graduated from Arizona State University, but you really graduated from the University of Arizona, they have told a lie about you, but it isn’t defamatory because the lie doesn’t (necessarily) cast you in a bad light. Further, the statement must be verifiably false, and can’t be an opinion. If a patient writes that a doctor has a “terrible bedside manner”, that term is too imprecise to ever prove that it is false. It is a matter of opinion.
But a significant percentage of Yelp reviews are false and defamatory. We have rooted out businesses with employees who are tasked with the job of writing false reviews about competitors. Even down to the individual level, it is often the case that someone will have an honest beef with a business, but when it comes time to sit down and write the review, they feel compelled to embellish.
You CAN Remove False, Defamatory Reviews from Yelp
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.
Yelp Ordered to Remove Defamatory Posts
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
How Not to Write a Yelp Review
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
Yelp Sues the McMillan Law Group, Claiming it Posted Fake Reviews
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.
Yelp appealed, and doubled-down by filing its own action back against the McMillan Law Group. It seems that Yelp had been busy looking into the law firm’s positive reviews, and decided that they did not all adhere to Yelp’s terms of use. Yelp’s complaint is a sight to behold, alleging that the McMillan Law Group is liable for breach of contract, intentional interference with contractual relations, unfair competition and false advertising. Yelp alleges:
“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.
[UPDATE: May 6, 2015] Yelp apparently realized the folly of its actions, and today filed a Request for Dismissal, disposing of its action against McMillan Law Group. No doubt Yelp will claim that the case settled, and likely it did, but not in the manner that would imply. A plaintiff always has the power to dismiss their own case — there is nothing the defendant can do to stop a dismissal — but a dismissal entitles the defendant to court costs. Often plaintiff’s counsel will approach defense counsel and offer to dismiss the action in exchange for a waiver of costs. Since costs are usually pretty nominal in the grand scheme of things, it is rare that a defendant will refuse this offer.
I’d be willing to bet any non crucial part of my anatomy that McMillan did not pay any money to Yelp as a part of any settlement. Yelp had no way to show any damages, so McMillan was not facing any risk of liability; only the costs of defense. Had it been me, and Yelp had offered a walkaway in exchange for a waiver of costs, I would have refused, knowing that Yelp would dismiss anyway, but I would have the satisfaction of a cost judgment against Yelp. I’m sure McMillan would have come to the same conclusion.
Alternatively, if the parties become cagey about the terms of the “settlement,” with both sides refusing to give any details, then that will likely mean that money went from Yelp to McMillan. In other words, McMillan would not give up the ability to set the record straight just to avoid the comical trial and full access to Yelp’s internal records. There would have to be some strong motivation for McMillan to remain mum about any settlement.
Alternatively to that alternative, if Yelp really did have some dirt on McMillan posting fake reviews, the consideration for silence about the settlement could have been that Yelp would keep that information to itself.
“I want a clean fight boys. Keep it clean.”
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.
- Yelp Backlash
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.
Biegel v. Norberg — Chilling On-Line Reviews?
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?
