Yelp – Live And Die By The Sword

Review site Yelp has been the topic of a number of lawsuits. Many of the suits relate to Yelp’s program of selling placement and advertising and the practice of improving a business’ ranking if the business is a paying Yelp ‘subscriber.’ There have also been suits were businesses have gone after Yelp reviewers and Yelp has fought to defend the identity of the people behind reviews for a number of reasons.

In general Yelp defends along the lines that it is an entertainment site and the business reviewed do not own or have a legitimate interest in the reviews.

In the 9th Circuit opinion of Levitt v. Yelp (2014) there was a long discussion by the court on the rights and duties of Yelp.  In sum, the court found Yelp could do what it wanted, delete reviews it wanted to delete, good or bad, and claims of extortion were really just “hard bargaining.”

We begin with Chan, who alleges that Yelp extorted her by removing positive reviews from her Yelp page. Chan asserts that she was deprived of the benefit of the positive reviews Yelp users posted to Yelp’s website . . . But Chan had no pre-existing right to have positive reviews appear on Yelp’s website. She alleges no contractual right pursuant to which Yelp must publish positive reviews, nor does any law require Yelp to publish them. By withholding the benefit of these positive reviews, Yelp is withholding a benefit that Yelp makes possible and maintains. It has no obligation to do so, however.

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Levitt and Mercurio similarly allege that Yelp attempted to extort them by removing positive user reviews. … Here, too, however, [Levitt] and Mercurio have no claim that it is independently wrongful for Yelp to post and arrange actual user reviews on its website as it sees fit. The business owners may deem the posting or order of user reviews as a threat of economic harm, but it is not unlawful for Yelp to post and sequence the reviews. As Yelp has the right to charge for legitimate advertising services, the threat of economic harm that Yelp leveraged is, at most, hard bargaining.

But now, with the shoe on the other foot, Yelp has gone to court seeking to prevent others from posting reviews on its site. In Yelp v. Yelpdirector et al, the company seeks to shut down third party sites that promise to post positive reviews. Yelp claims:

Yelp’s online reviews are a trusted resource for consumers to learn about local businesses, unfortunately some try to game the system and undermine that trust, by building businesses based on fraudulent reviews, invasive spam, and conduct that otherwise violates the law as well as Yelp’s Terms of Service …

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Yelp was founded in 2004 to provide consumers with authentic reviews…reviews are genuine and unbiased.

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Yelp vigilantly protects the legitimacy and authenticity of the reviews on the Yelp Site. To that end, Yelp commits substantial resources to prevent fake, altered, or otherwise fraudulent reviews

So while business complain that Yelp demands money to allow good reviews to be posted and the courts agree that Yelp is free to adjust, re-order or even delete reviews as it wishes, Yelp cries foul when anyone else plays Yelp’s game.

Yelp is of course free to defend itself against others that improperly exploit and injure its platform.  But Yelp cannot go into one court and claim the purity and unbiased sanctity of its review system is being harmed, yet go into another court and claim the right to freely alter, delete and re-order reviews in the name of “hard bargaining” to get businesses to pay to be a part of a site that is as much entertainment as anything.

Yelp will soon need to decide if they are going to be a advotainment for profit site, or a legitimate unbiased review site.

Relevant documents –

Yelp’s Complaint in: Yelp v. Yelpdirector et al. (ND Cal., 2015)

The Opinion of the 9th Circuit: Levitt v. Yelp (9th Cir., 11-17676, 2014)

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