Living with Kimzey v. Yelp – Protecting Against Yelp Review Lawsuits
With the recent decision by the Ninth Circuit in Kimzey v. Yelp (I refuse to use the exclamation point) reinforcing the fact that – no matter how clever the pleading – Yelp is not liable for negative business reviews that are created, published, or disseminated on its site, reviewers themselves are the prime target for any business owner angry enough to try and file a lawsuit over a Yelp review. As a result, anyone posting to Yelp or any other online review service would be wise to tread carefully for at least the next few months, if not as a general rule of thumb.
How exactly, you might be asking, could any business owner sue over a Yelp review? Typically such a lawsuit would take the form of a defamation lawsuit – essentially, that the business and its reputation have been damaged because you have made false statements about it. However, while a Yelp review could in theory be defamatory, in actuality it’s highly unlikely that any Yelp review – no matter how critical or negative – would actually support a legitimate defamation claim.
The reason for this is simple: given the obvious importance of the First Amendment in the United States, statements of opinion are constitutionally protected: “[a]lthough statements of fact may be actionable as libel, statements of opinion are constitutionally protected.” As anyone who uses Yelp or other online review sites know, the user reviews there are perfect examples of protected statements of opinion, particularly given the fact that they are posted on a site that is essentially dedicated to sharing opinions.
While it gets somewhat more complicated than this, the bottom line is that the law is largely clear that a lawsuit against a Yelp reviewer is almost always going to be a losing proposition. Of course, that hasn’t stopped business owners from trying as, after all, the threat of litigation or the financial cost of defending against a lawsuit may be enough to force a reviewer to change or remove the negative review, even if the lawsuit itself has no chance of success. So with that said, there are a few suggestions to consider the next time you find yourself ready to post a review online.
First, limit yourself to statements of opinion. It may seem crazy that a statement like “I thought he was the most idiotic dentist in the world” is more defensible than a statement like “my dentist kept me waiting for three hours before seeing me,” but the first is very clearly an opinion while the second is arguably more of a factual claim. That’s not to say, of course, that you can’t make factual or quasi-factual statements in your reviews (in fact there are cases protecting certain seemingly factual statements as opinions); rather, it’s only to say that the more factual statements your review contains, the more you expose yourself to potential liability.
Second, consider posting anonymously. I understand that in this day and age, where social media abounds and where seemingly everyone’s real names, images, and thoughts are publicly available everywhere, the idea of posting anonymously on a mainstream site such as Yelp seems rather paranoid. However, if you think there’s any chance that an irate business owner may come hunting you down over your review, in most cases discretion is the better part of valor. There are certainly exceptions of course, but most people don’t want to be contacted about a negative Yelp review, let alone get dragged into a lawsuit over it. While such a lawsuit, as discussed above, is unlikely to have any merit, it will still eat up your time and money to defend against. So generally speaking, it may be better to simply avoid the confrontation in the first place. Without an easily available target, a business owner will have the chance to cool off and stop himself or herself before doing anything rash, whereas if your real identity is front and center with your review it makes you easy to attack in the moment.
And finally, if you post a negative review, save any evidence that would support your negative review. If they overcharged you, save the bill. If you had to go to the doctor’s office to be treated for food poisoning, save the restaurant receipt and the invoice from your doctor’s visit. If they kept you waiting for two hours, save the e-mail with your appointment time and call a friend with a good memory to complain about it. Long story short, in California you may have the opportunity to quickly deal with a lawsuit over an online review (search for “anti-SLAPP motion” if you’re curious), but doing so partially hinges on if you have any evidence to back up the claims in your review.
TLDR: While there are of course no guarantees when it comes to preventing a lawsuit, or prevailing in the event you find yourself in one, taking a deep breath and taking a few precautions before posting anything online – Yelp review or otherwise – can potentially save you a lot of time, hassle, and headache in the future.
If you’re involved in a lawsuit or risk management and have any questions regarding current or potential legal issues, we would urge you to contact an attorney as soon as possible to obtain advice, guidance and representation. At Baker, Keener & Nahra, we have the experience, skill, and drive to get the best possible results for our clients, no matter the size of the case or the scope of the problem. So if we can be of any assistance to you, please contact us and let us know how we can help.