Post Authored by: Ava Caffarini
On October 8, 2020, Yelp! announced two new consumer alerts. Under the new policy, Yelp! will publish the following general public attention alert (“Public Attention Alert”) to inform consumers that someone associated with a business has been accused of, or was the target of, racist behavior and that Yelp! is investigating the accusation:
See https://blog.yelp.com/wp-content/uploads/2020/10/Yelp_Public-Attention-Alert.png (last visited October 26, 2020).
Yelp! will issue a separate “Business Accused of Racist Behavior Alert” when there is “resounding evidence of egregious, racist actions from a business owner or employee, such as using overtly racist slurs or symbols” and will provide a link to a news article about the alleged incident. Yelp! published the following sample Business Accused of Racist Behavior Alert on its website:
See https://blog.yelp.com/wp-content/uploads/2020/10/Yelp_Business-Accused-of-Racist-Behavior-Alert.png (last visited October 26, 2020). Yelp! published these samples of the Public Attention Alert and the Business Accused of Racist Behavior Alert (together “the Alerts”) on the Yelp! blog, alongside an explanation of the new policies. See https://blog.yelp.com/2020/10/new-consumer-alert-on-yelp-takes-firm-stance-against-racism (last visited October 26, 2020); https://blog.yelp.com/2020/10/media-fueled-consumer-alerts-faq (last visited October 26, 2020).
Yelp! will publish these Alerts when it notices an unusual uptick of activity on a business’s page, such as when there is an increase in reviews that are not based on firsthand experience of the user, and/or when Yelp! has investigated and confirmed a report of the racist behavior at issue. However, Yelp! does not clearly define the criteria it uses to determine when to publish an Alert; how long either Alert will appear on a particular business’s Yelp! page; what Yelp! considers racist; or how Yelp! will investigate an accusation. Rather, Yelp!’s policies are silent on these issues, and Yelp!’s explanatory blog posts fail to directly answer these questions. See https://www.yelp-support.com/article/What-are-Consumer-Alerts?l=en_US (last visited October 26, 2020); https://blog.yelp.com/2020/10/media-fueled-consumer-alerts-faq (last visited October 26, 2020); https://blog.yelp.com/2020/10/new-consumer-alert-on-yelp-takes-firm-stance-against-racism (last visited October 26, 2020).
This new policy puts businesses in a difficult position, particularly if a business finds itself wrongfully subject to an Alert. In the latter case, a business may be inclined to file a defamation or false light claim against Yelp!. The purpose of this article is to discuss the defenses that Yelp! may invoke, each of which is outlined below.
A) Section 230 Immunity
As in prior defamation lawsuits, Yelp! is likely to argue that it is immune to liability because it is an internet computer service under Section 230 of the of the Communications with Decency Act of 1996 (“CDA”). See generally Kimzey v. Yelp! Inc., 836 F.3d 1263 (9th Cir. 2016); Westlake Legal Grp. v. Yelp!, Inc., 599 F. App’x 481 (4th Cir. 2015); Reit v. Yelp!, Inc., 29 Misc. 3d 713 (Sup. Ct. 2010); Hassell v. Yelp!, Inc., 139 S. Ct. 940 (2019). Section 230 confers immunity to all internet computer services for any statements published by its users. See 47 U.S.C. § 230(c)(1) and (e). See also For Civil Rights Under The Law, Inc. v. Craigslist, Inc., 461 F. Supp. 2d 681 (N.D. Ill. 2006), aff’d sub nom. Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), as amended (May 2, 2008) (stating that Section 230 “bars those causes of action that would require treating an [interactive computer services] as a publisher of third-party content.”). Section 230(e)(3) explicitly bars liability arising under a state or local law inconsistent with the terms of Section 230. Thus, Section 230 shields Yelp! from liability for all state law claims, including defamation and false light claims.
However, Section 230 immunity may not apply to a Yelp! Alert, as opposed to a statement published by one of its third-party users. See Kimzey v. Yelp! Inc., 836 F.3d 1263, 1269 (9th Cir. 2016) (“[T]his is not to say that CDA immunity extends to content created or developed by an interactive computer service; it does not.”); Reit v. Yelp!, Inc., 29 Misc. 3d 713, 716 (Sup. Ct. 2010) (“[A]n internet computer service is liable for its own speech, or when it ‘develops’ information”). By creating and publishing these Alerts, Yelp! is not merely supplying a forum for information provided by third parties on the Yelp! website. Rather, Yelp! is creating its own content. In such circumstances, therefore, Yelp!’s conduct may fall outside the purview of Section 230, and immunity may not apply.
B) Establishing a Prima Facie Case for Defamation
Depending on the circumstances surrounding Yelp!’s publication of an Alert, Yelp! may launch a successful defense by attacking the business’s prima facie case for defamation. Under Illinois law, “[a] statement is defamatory if it harms an individual’s reputation by lowering the individual in the eyes of his community or deters the community from associating with him.” Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 24. “Statements may be considered defamatory per se or defamatory per quod.” Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006). “Statements are considered defamatory per se when the defamatory character of the statement is apparent on its face; that is, when the words used are so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed.” Kapotas v. Better Gov’t Ass’n, 2015 IL App (1st) 140534, ¶ 31. Defamation per se does not require proof of damages, if the plaintiff can prove that the defamatory statement falls within one of the following categories:
(1) words imputing the commission of a criminal offense; (2) words that impute infections with a loathsome communicable disease; (3) words that impute an individual is unable to perform his employment duties or otherwise lacks integrity in performing those duties; (4) words that prejudice an individual in his profession or otherwise impute a lack of ability in his profession; and (5) words that impute an individual has engaged in fornication or adultery. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 25.
In contrast, Defamation per quod requires proof that a defendant (1) made a false statement about the plaintiff; (2) that the defendant made an unprivileged publication of the subject statement to a third party; and (3) that the publication caused damages to the plaintiff. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 24. “Statements are actionable per quod if they necessitate extrinsic facts or innuendo to explain their defamatory meaning, and require evidence demonstrating, as a matter of fact, that some substantial injury resulted to the aggrieved person from their use.” Schaffer v. Zekman, 196 Ill. App. 3d 727, 731 (1st Dist. 1990).
- Public Attention Alert
It seems as if a business owner should have some ability to recover from Yelp! if Yelp! publishes a Public Attention Alert based on accusations of racism which are simply false. This scenario may arise if a business falls victim to an internet hoax or if a disgruntled reviewer somehow persuades Yelp! to publish a Public Attention Alert. However, because Yelp! has not published the criteria that it would use to determine when to publish a Public Attention Alert, it is unclear how or how often businesses can expect these types of mistakes to occur.
In addition, a business owner may also have the ability to recover from Yelp! if Yelp! publishes a Public Attention Alert for a business that has been the target of racist behavior, a business with an employee that was targeted by the racist behavior of a customer, or a business where a racist incident occurred between two customers. Indeed, Yelp!’s Public Attention Alert does not distinguish between a business which has been a target of racist behavior and a business which has been accused of racist behavior. Without this necessary context, an unknowing third-party is likely to interpret the Public Attention Alert to mean that the business has been accused of racist behavior without considering whether the business has actually been the target of racist behavior. Finally, a business owner may also have the ability to recover from Yelp! if Yelp! publishes a Public Attention Alert when someone associated with the business—like a friend or family member of the owner, or an employee of the business—is accused of racism outside of any association with the business at all.
It is not clear whether courts would allow a claim for defamation per se against Yelp! under these circumstances.Even though the Public Attention Alert implies that the business lacks integrity in performing its duties, Yelp! would likely argue (1) that the business cannot recover for defamation per se because it merely insinuated, but did not directly state, that the business behaved in a racist manner and (2) that a business is therefore required use extrinsic facts to explain the defamatory meaning of Yelp!’s Public Attention Alert. If courts were to rule in this way, a business owner would also need to prove that the business suffered special damages as a result of Yelp!’s Public Attention Alert.
2) Business Accused of Racist Behavior Alert
The law may apply similarly to a Business Accused of Racist Behavior Alert. However, as the Business Accused of Racist Behavior Alert states that someone associated with the business was accused of racist behavior, there cannot likely be recovery if that statement is true. Moore v. People for the Ethical Treatment of Animals, Inc., 402 Ill. App. 3d 62, 71, 932 N.E.2d 448, 457 (1st Dist. 2010) (“A defendant is not liable for a defamatory statement if the statement is true.”). Indeed, even if the underlying accusation of racist behavior is false, it may still be literally true that someone has accused the business, or a person associated with the business, of racist behavior.
A business may also have a defamation claim against Yelp! if Yelp! were to publish a news report in its Business Accused of Racist Behavior Alert and the news report itself contained a false, defamatory statement about the business. Brennan v. Kadner, 351 Ill. App. 3d 963, 970–71 (1st Dist. 2004). However, to recover for defamation under these circumstances, a business would need to prove that Yelp! republished the news report with actual malice, “that is, with knowledge that the statement was false or with reckless disregard as to whether it was false.” Brennan v. Kadner, 351 Ill. App. 3d 963, 971 (1st Dist. 2004) (“[P]laintiff conceivably could establish actual malice if he could show that the alleged originator or source of the statement either did not exist or did not make the statement, or that defendants knew the statement was false or recklessly disregarded whether it was false.”). The business would likely need to prove that Yelp! knew the article was unreliable and that Yelp! did not adequately investigate the allegations found in the news report.
C) Establishing a Prima Facie Case for False Light
Yelp may also choose to undermine the business’s false light claim. “The tort of false light invasion of privacy protects one’s interest in being let alone from false publicity.” Brennan v. Kadner, 351 Ill. App. 3d 963, 971 (1st Dist. 2004). See also Lovgren v. Citizens First Nat. Bank of Princeton, 126 Ill. 2d 411, 418–20 (1989). “To state a claim of false light invasion of privacy, a plaintiff must allege and prove that: (1) he was placed in a false light before the public as a result of the defendant’s action; (2) the false light in which he was placed would be highly offensive to a reasonable person; and (3) the defendant acted with actual malice.” Brennan v. Kadner, 351 Ill. App. 3d 963, 971 (1st Dist. 2004). “The purpose underlying the false light cause of action is to define and protect an area within which every citizen must be left alone.” Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1, 18 (1992).
A plaintiff may rely upon the same facts used to establish a defamation claim to establish a false light claim. Dubinsky v. United Airlines Master Exec. Council, 303 Ill. App. 3d 317, 330 (1st Dist. 1999). Assuming that the accusation of racist behavior in a Yelp! Alert is false, a Yelp! Alert is likely to be sufficiently public to support a false light claim because people all over the world who visit the business’s Yelp! page will be able to view the Alert until it is removed. A reasonable person is also likely to find false allegations of racism to be highly offensive. Lovgren v. Citizens First Nat. Bank of Princeton, 126 Ill. 2d 411, 419 (1989) (holding that false allegations that the plaintiff’s farm was for sale under public auction to be sufficient to support a false light claim).
However, proving actual malice is more difficult because it requires a business to prove that Yelp! knew the allegations of racist behavior were false or that Yelp! did not adequately investigate the allegations of racist behavior against the business and published an Alert anyway. Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1, 17–18 (1992) (stating that actual malice was acting “with knowledge that the statements were false or with reckless disregard for whether the statements were true or false.”).
As discussed above, even though Yelp! undoubtedly has defenses to defamation and false light claims at its disposal, if an aggrieved business finds itself subject to a false Yelp! Alert, it would be wise to consult an attorney who is knowledgeable in defamation and/or false light claims. This is particularly true, because the damage to a business resulting from the false publication of an Alert may be very high given Yelp!’s popularity among internet users. See https://www.yelp-press.com/company/fast-facts/default.aspx (last visited October 26, 2020).
About the Author:
Ava Caffarini is an associate at Johnson & Bell, Ltd., focusing her practice area on professional liability, business litigation, nursing malpractice, and insurance defense. Ava is a graduate of the John Marshall Law School and has a B.S. in Molecular and Cellular Biology from the University of Illinois at Urbana-Champaign.