Yelp! Reviews and Defamation (Guest Post)

This post was primarily authored by David Axelson, a student at the Loyola University Chicago School of Law and a 2013 summer associate at Honigman Miller Schwartz and Cohn LLP.

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The online review website Yelp! has become a legal battleground for defamation claims.  In Wong v. Jing (Cal. Ct. App., Nov. 9, 2010), pediatric dentist Yvonne Wong sued one of his patient’s parents for defamation, claiming that they made false assertions in a Yelp review criticizing Wong’s services.  Specifically, the defendants stated in the review that Wong failed to discover numerous cavities, used a general anesthetic (laughing gas) rather than a local one–which, according to Wong, had the potential to strip her of her license–and filled their son’s cavity with “metallic filling, called silver amalgams [sic], [which] has a small trace of mercury in it.”  The review added, “[a]void her like a disease!”

Wong asked Yelp! to delete the review, but to no avail.  In response to the suit, the defendants filed an Anti-SLAPP motion.  (“SLAPP” stands for Strategic Lawsuit Against Public Participation).  As a California court explained, state anti-SLAPP statutes “allow[] a defendant to gain early dismissal of causes of action that are designed primarily to chill the exercise of First Amendment rights.”

The court agreed that the speech was constitutionally protected because the defendants’ review implicitly involved an “issue of public interest”—that is, the dangers of silver amalgam and nitrous oxide.  However, the court held that Wong’s defamation claim was “likely to succeed,” as the Yelp! review contained implied assertions of fact that were plainly false and defamatory.  The final outcome is pending.  See also Dietz Development LLC v. Perez (Sup. Ct. Va. Dec. 28, 2012) (reversing injunction that forced Yelp reviewer to remove her negative posts about a contractor, reasoning in part that the contractor had an adequate remedy at law).

Not every user that posts a negative review on Yelp!, however, will be liable for defamation.  The question is whether the legal elements of the claim have been satisfied, not whether a business is displeased with a poor review.  Pure statements of opinion are protected forms of speech.  In Brompton Building, LLC v. Yelp!, Inc. (Ill. App. Ct. Jan. 31, 2013), the plaintiff, Brompton Building, LLC (Brompton), filed a verified petition for discovery against Yelp seeking the identity of an anonymous poster, Diana Z. from Chicago.  Brompton claimed that Diana Z. defamed it by posting a review stating that Beal Properties (the former managing agent of Brompton) lied about not receiving her rent payment and illegally charged tenants late fees.  Specifically, Diana Z.’s lengthy review contained the following statements:

On May 6, 2011, I was issued a card in the mail that claimed my rent was late.  I paid my rent prior to the first, however Beal claimed that they did not receive my check until the 6th . . . This is a TOTAL lie!!! . . . After reading several Yelp reviews, its [sic] clear that Beal Properties is illegally charging tenants late fees for their rent . . . Is there any way we can find out if other Beal tenants (for me: Brompton Building LLC) have also been illegally charged late rent fees? We may have a voice in numbers-especially complaining to BBB.

Brompton claimed that these comments falsely implied accusations of criminal activity and deceptive practices.  The trial court sided with Yelp and denied Brompton’s petition for discovery, concluding that the posting was not defamatory.  The appellate court affirmed.  In doing so, it noted, “when Diana Z.’s posting is reviewed in its entirety, the challenged comments appear to be in the nature of opinions, not statements of fact.”  According to the court, the comments were nothing more than “conclusory speculation.”  Notably, Diana Z. stated that she based her allegations on reading other Yelp! reviews, and at one point included, “I understand that this is not legal ‘proof’ that my rent was actually received before the 5th.”  Although Diana Z. escaped liability, the line between statements of fact and statements of opinion is a blurry one, which could be dangerous for social media users.

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