First Amendment Wording and Internet Censorship

This is a guest post by Internet Attorney Richard B. Newman which shares with us the status of the most recent lawsuit brought against Yelp alleging manipulation of reviews. Because the cases are being brought under the Communications Decency Act, the outcome affects bloggers even if they never use Yelp because the outcome sets precedents for the application of the Communications Decency Act of 1996.

In June 2009 I wrote How to Get Your Free Listing at Yelp and I updated that post in February 2010 and wrote Why We No Longer Recommend Yelp to Businesses because of repeated accusations that Yelp deletes positive reviews and/or adds negative reviews to get businesses to buy advertising with them.

The distinctive nature of the Internet has played a critical role in cases that have addressed the level of First Amendment protection to be applied to the medium.  Earlier this month, the U.S. District Court for the Northern District of California ruled that the Communications Decency Act Immunity for Publisher’s protection for interactive computer services against claims that seek to treat them as the publisher or speaker of third-party, user-generated content, is not dependent upon the motive underlying the services’ performance of traditional editorial functions.

The ruling was issued in conjunction with a lawsuit involving allegations that Yelp, an online review service, knowingly manipulates user-generated reviews and rankings on its service to drive its advertising sales.

Specifically, the complaint alleged that Yelp was liable for extortion and other wrongs on several grounds, including;

• creation of negative business reviews through its employees and other paid individuals acting on its behalf;
• manipulation of third-party reviews, by highlighting negative reviews for customers who did not sign up for its paid advertising service; and
• manipulation of third-party reviews to drive down its business rankings, which Yelp, rather than third-parties, creates.

The court disposed of the claim alleging that Yelp created negative reviews based upon insufficient allegations.  As it pertains to Yelp’s alleged manipulation of user-generated content, the court concluded the claims were barred under the Communications Decency Act.

The Communications Decency Act provides that no provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider.  This provision has been interpreted quite broadly by many courts.  Any activity that can be boiled down to deciding whether to exclude material that third-parties seek to post online is essentially immune.

The plaintiff alleged that this lawsuit involved content created by Yelp, a star rating at the top of each business’ review page, and that the Communications Decency Act did not apply.

The court disagreed, reasoning that linking the Communication Decency Act’s publisher immunity provision to a service’s motives would ultimately result in the “death by ten thousand duck-bites” and that such a bad faith exception could force service providers to defend waves of litigation involving editorial decisions.  Such an interpretation would contravene the purpose of the statute, the court said.

The Communications Decency Act immunized Yelp from these claims even if it performed traditional editorial functions, such as choosing which user-generated content to delete, with wrongful motives, such as trying to drive down a business’ ranking to encourage them to sign-up for paid services.

Although the case was dismissed and other cases interpreting the Communications Decency Act have not established an intent-based exception to immunity, the court did make it clear that the Communications Decency Act would not protect Yelp from a lawsuit alleging that it “deceptively represented its rankings as user-generated and neutral.”     Interestingly, this ruling differs from one issued in another lawsuit involving Yelp earlier this year, wherein a different judge concluded that Yelp’s bad-faith intent in manipulating user reviews fell outside the traditional editorial functions protected by the Communications Decency Act.

Traditionally, there are narrow exceptions to the broad immunity granted to service providers.  A website owner may lose CDA immunity if it takes an active role in editing unlawful content.  However, this recent ruling indicates that while the performance of editorial functions includes subjective judgements - determining which motives are permissible could prove problematic - exposing service providers to potential litigation about those motives could chill online speech and contravene the Communication Decency’s Act purpose.

If you are uncertain of how to interpret the exceptions to the Communications Decency Act, contact your Internet Defamation Attorney.

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Richard B. Newman is an Internet Lawyer at Hinch Newman LLP
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COMMUNICATIONS DECENCY ACT of 1996

• Eff.org ~ articles related to Communications Decency Act
• Epic.org ~ Communications Decency Act struck down

FREEDOM OF SPEECH

• Freedom of Speech and Online Hate Speech
• ACLU History: Modern-Day Censorship: Reno v. ACLU
• Freedom Forum: The First Amendment

YELP REVIEWS EXTORTION

• Eric Goldman: Yelp Gets Complete Win in Advertiser “Extortion” Case–Levitt v. Yelp
• TechCrunch: Class Action Lawsuits Alleging Extortion Over Yelp’s Review System Dismissed

Image Credit ft.com TechBlog

Yelp has been repeatedly accused of manipulating reviews to pressure businesses to advertise with them. Based on the information we share in this post and much more we have seen, we no longer recommend Yelp to business owners.

The East Bay Express article Yelp and the Business of Extortion cites twelve separate instances where business owners confirmed these accusations plus a former contract employee’s statement plus Yelp’s own admission that they pay employees to write business reviews.

Based on the thorough reporting in this story, all the previous similar complaints over the years, and the reviews of Yelp we have read (some of which are excerpted below) it is our opinion that Yelp has lost credibility and using them presents more danger than benefit to business owners. Businesses already listed there may wish to be cautious about their activities.

We base our recommendations on much research and include these excerpts among hundreds we found that seem particularly credible:

Reviews of Yelp: This one by Nick R: This site has dubious integrity. I’ve spoken to many business owners who refused an advertising package with Yelp, then Yelp suddenly removed all of their positive reviews, claiming they were “fraudulent.” There is no doubt a lot of manipulation in reviews done by the Yelp staff based on those who do, or do not, advertise on this site.

And half the reviews here can be summed up as “omg, I came here for the first time in a group of 20 and had bad service, i’ll never go back.” Which is beyond useless, when you come big group and only try an establishment once, your chances of everything going smoothly approach nil.

Excerpt of Yelp Review by member Penguin: “First and foremost, I personally know of 4 friends who have Yelped a business we have gone to in Oregon. With me, there were 5 reviews. However, if you go to this business, you will find only 1 review. The other 4 are not seen by the general public. They say this is a random program by their computer. I say it’s bullshit. If it were my business missing 75% of reviews, even if some were mixed, I would be upset. Show them all and let them get flagged if we suspect foul play!”

Review of Yelp written by Gary N: Here’s what you need to know about Yelp, whom you probably trust:

Yelp’s insistence that “everyone’s opinion counts equally” is a lie. The fact is they randomly censor and withhold reviews without offering any justification to the reviewer. They answer to no one in these matters.

They also have a policy, and pay a force of representitives to visit businesses that are reviewed on Yelp, that borders on extortion. For years, yelpers who wanted to review a business, or check out a business’ reviews were taken to that business page, where they could do just that. Suddenly, banners appeared on highly rated reviews (5 stars) that advised “you may want to check out “X”, usually a much lower rated competitor.

Then they send their paid squad out to inform that business that this unpleasant leaching of your hard earned reputation by a sub-quality competitor WHICH THEY HAD PLACED THERE can go away if you were willing to pay them a great deal of money each month. Turns out the leachers had already paid them to do just that. If I agreed to pay more money than they did, Yelp would remove their ad from our result page, and I could even pick a competitor whose response page I could leach on.

Can you imagine? I kicked them out.

This is an abhorrent business practice. It may well be technically legal, due to the sorry state of business practice oversite, but it is not morally justified by a company that promotes itself as a democratic egalitarian voice of the people.

The idea of Yelp is glorious, and democratic, and so appealing. But like American democracy, it has become a system that players like Yelp mine for their own profit. I know Yelp had to look for revenue sources, it was never a charity/public service concern. But buying better exposure by paying money to yelp to piggyback off businesses that have worked hard and long to EARN their 5 star reviews is wrong on the face of it, and can’t be justified.

Yelp has revealed itself as a hypocrite and greedy, morally challenged company.

Is it still a useful service? Probably yes. Despite Yelp’s despicable attempt to strong arm hard working and sucessful businesses to protect the value of good ratings, the basic idea is sound and useful.

My greatest hope is that a new start-up recognizes the opening Yelp’s misstep announces, and steps in to realize again the original, wonderful concept that was Yelp.

Read the reviews, I still do. But don’t be fooled. Yelp’s ego and profit motive is between you and the truth.

Yelp review written by Barry H. in San Diego: The initial concept was good but the site is being abused by businesses trying to hurt their competitors by writing patently untrue reviews using fake accounts. In response, Yelp seems to have gone overboard in singling out reviews they feel are in violation of terms of service.

I am a member of a 90 business networking group. I’ve done business with about 15 of them and have reviewed 8 of the ones I actually use. Yelp threatened to ban me from the site unless I removed those reviews because of a POTENTIAL conflict of interest. TAKE HEED all you Yelpers out there lest you review a friend you have done business with and get banned from the site.

I am a physician-no secret here. Now Yelp has removed any and all reviews I wrote on physicians. POTENTIAL conflict of interest again!! Trouble is that one of those physicians operated on my daughter and we arent even on the staff at the same hospitals so I have no conflic greater than any of you out there.

I understand what they are trying to do but their draconian tactics are rapidly making the site useless for me. I am only able to write this as an update to a review I wrote last year because INTERESTINGLY ENOUGH you can no longer simply review Yelp itself. Try to and see. You can review yelp events or yelpers but not the organization . Coincidence? I think not. Big Brother is watching you!!!!

This site has dubious integrity. I’ve spoken to many business owners who refused an advertising package with Yelp, then Yelp suddenly removed all of their positive reviews, claiming they were “fraudulent.” There is no doubt a lot of manipulation in reviews done by the Yelp staff based on those who do, or do not, advertise on this site.

And half the reviews here can be summed up as “omg, I came here for the first time in a group of 20 and had bad service, i’ll never go back.” Which is beyond useless, when you come big group and only try an establishment once, your chances of everything going smoothly approach nil.

YELP NEWS:

* Wired: Yelp Class Action Lawsuit (Feb 24, 2010)
* East Bay Express: Yelp and the Business of Extortion (Feb 18, 2009)
* New York Times: Google Said to Be Near a Yelp Deal (Dec 19, 2009)
* Seattle PI: Google May Buy Yelp; Because of Microsoft? (Dec 18, 2009)
* TechCrunch: Google in Discussions to Buy Yelp for Half a Billion Dollars or More (Dec 17, 2009)
* Scobleizer: Google Eating Yelp? (Dec 17, 2009)
* NY Times: Review Site Draws Grumbles From Merchants and Users (Mar 2, 2009)
* Yelp CEO Response to San Francisco Chronicle Letter (Jan 18, 2009)
* San Francisco Chronicle: Merchants Angry Over Getting Yanked by Yelp (Jul 4, 2008)

YELP REPUTATION:

* Yelp BBB Rating
* Is Yelp a Scam?
* Reviews of Yelp at Yelp
* Complaints Board Yelp Complaints page

Related articles by Zemanta

• Yelp CEO: This lawsuit is bunk (news.cnet.com)
• New class action lawsuit targets Yelp (news.cnet.com)
• Yelp facing class-action lawsuit over extortive “ad sales” (arstechnica.com)
• Long Beach Business Sues Yelp, Claims Site Runs ‘extortion scheme’ (laist.com)
• Yelp accused of extortion (again) (vator.tv)
• Yelp CEO Denies Extortion Scheme (mashable.com)
• Real People. Real Reviews. Real Extortion Scheme? (blogs.wsj.com)
• Yelp Inspires New Business Model for Gawker [Shakedowns] (gawker.com)
• Yelp Reviews: The CRAZIEST Things Reviewed On The Site (PHOTOS) (huffingtonpost.com)
• David v Goliath (news.bbc.co.uk)
• Don’t fear the Yelper (trueslant.com)
• Yelp Is Sued After Dispute Over a Review (bits.blogs.nytimes.com)

Image Credit ft.com TechBlog

UPDATE Feb 27, 2010: Yelp has been repeatedly accused of manipulating reviews to pressure businesses to advertise with them. Based on this latest article by the East Bay Express we stopped recommending Yelp to business owners; however, Merchant Circle and others have also been guilty of these same unethical practices. You may wish to use them – just be aware of the issues.

The East Bay Express article Yelp and the Business of Extortion cites twelve separate instances where business owners confirmed these accusations plus a former contract employee’s statement plus Yelp’s own admission that they pay employees to write business reviews.

Based on the thorough reporting in this story, all the previous similar complaints over the years, and the reviews of Yelp we have read (some of which are excerpted below) it is our opinion that Yelp has lost credibility. Businesses already listed there may wish to be cautious about their activities.

We base our recommendations on much research and include these excerpts among hundreds we found that seem particularly credible:

Reviews of Yelp: This one by Nick R: This site has dubious integrity. I’ve spoken to many business owners who refused an advertising package with Yelp, then Yelp suddenly removed all of their positive reviews, claiming they were “fraudulent.” There is no doubt a lot of manipulation in reviews done by the Yelp staff based on those who do, or do not, advertise on this site.

And half the reviews here can be summed up as “omg, I came here for the first time in a group of 20 and had bad service, i’ll never go back.” Which is beyond useless, when you come big group and only try an establishment once, your chances of everything going smoothly approach nil.

Excerpt of Yelp Review by member Penguin: “First and foremost, I personally know of 4 friends who have Yelped a business we have gone to in Oregon. With me, there were 5 reviews. However, if you go to this business, you will find only 1 review. The other 4 are not seen by the general public. They say this is a random program by their computer. I say it’s bullshit. If it were my business missing 75% of reviews, even if some were mixed, I would be upset. Show them all and let them get flagged if we suspect foul play!”

Review of Yelp written by Gary N: Here’s what you need to know about Yelp, whom you probably trust:

Yelp’s insistence that “everyone’s opinion counts equally” is a lie. The fact is they randomly censor and withhold reviews without offering any justification to the reviewer. They answer to no one in these matters.

They also have a policy, and pay a force of representitives to visit businesses that are reviewed on Yelp, that borders on extortion. For years, yelpers who wanted to review a business, or check out a business’ reviews were taken to that business page, where they could do just that. Suddenly, banners appeared on highly rated reviews (5 stars) that advised “you may want to check out “X”, usually a much lower rated competitor.

Then they send their paid squad out to inform that business that this unpleasant leaching of your hard earned reputation by a sub-quality competitor WHICH THEY HAD PLACED THERE can go away if you were willing to pay them a great deal of money each month. Turns out the leachers had already paid them to do just that. If I agreed to pay more money than they did, Yelp would remove their ad from our result page, and I could even pick a competitor whose response page I could leach on.

Can you imagine? I kicked them out.

This is an abhorrent business practice. It may well be technically legal, due to the sorry state of business practice oversite, but it is not morally justified by a company that promotes itself as a democratic egalitarian voice of the people.

The idea of Yelp is glorious, and democratic, and so appealing. But like American democracy, it has become a system that players like Yelp mine for their own profit. I know Yelp had to look for revenue sources, it was never a charity/public service concern. But buying better exposure by paying money to yelp to piggyback off businesses that have worked hard and long to EARN their 5 star reviews is wrong on the face of it, and can’t be justified.

Yelp has revealed itself as a hypocrite and greedy, morally challenged company.

Is it still a useful service? Probably yes. Despite Yelp’s despicable attempt to strong arm hard working and sucessful businesses to protect the value of good ratings, the basic idea is sound and useful.

My greatest hope is that a new start-up recognizes the opening Yelp’s misstep announces, and steps in to realize again the original, wonderful concept that was Yelp.

Read the reviews, I still do.  But don’t be fooled.  Yelp’s ego and profit motive is between you and the truth.

Yelp review written by Barry H. in San Diego: The initial concept was good but the site is being abused by businesses trying to hurt their competitors by writing patently untrue reviews using fake accounts.  In response, Yelp seems to have gone overboard in singling out reviews they feel are in violation of terms of service.

I am a member of a 90 business networking group.  I’ve done business with about 15 of them and have reviewed 8 of the ones I actually use.  Yelp threatened to ban me from the site unless I removed those reviews because of a POTENTIAL conflict of interest.  TAKE HEED all you Yelpers out there lest you review a friend you have done business with and get banned from the site.

I am a physician-no secret here.  Now Yelp has removed any and all reviews I wrote on physicians.  POTENTIAL conflict of interest again!! Trouble is that one of those physicians operated on my daughter and we arent even on the staff at the same hospitals so I have no conflic greater than any of you out there.

I understand what they are trying to do but their draconian tactics are rapidly making the site useless for me.  I am only able to write this as an update to a review I wrote last year because INTERESTINGLY ENOUGH you can no longer simply review Yelp itself.  Try to and see.  You can review yelp events or yelpers but not the organization .  Coincidence?  I think not.  Big Brother is watching you!!!!

This site has dubious integrity. I’ve spoken to many business owners who refused an advertising package with Yelp, then Yelp suddenly removed all of their positive reviews, claiming they were “fraudulent.” There is no doubt a lot of manipulation in reviews done by the Yelp staff based on those who do, or do not, advertise on this site.

And half the reviews here can be summed up as “omg, I came here for the first time in a group of 20 and had bad service, i’ll never go back.” Which is beyond useless, when you come big group and only try an establishment once, your chances of everything going smoothly approach nil.

YELP NEWS:

* Wired: Yelp Class Action Lawsuit (Feb 24, 2010)
* East Bay Express: Yelp and the Business of Extortion (Feb 18, 2009)
* New York Times: Google Said to Be Near a Yelp Deal (Dec 19, 2009)
* Seattle PI: Google May Buy Yelp; Because of Microsoft? (Dec 18, 2009)
* TechCrunch: Google in Discussions to Buy Yelp for Half a Billion Dollars or More (Dec 17, 2009)
* Scobleizer: Google Eating Yelp? (Dec 17, 2009)
* NY Times: Review Site Draws Grumbles From Merchants and Users (Mar 2, 2009)
* Yelp CEO Response to San Francisco Chronicle Letter (Jan 18, 2009)
* San Francisco Chronicle: Merchants Angry Over Getting Yanked by Yelp (Jul 4, 2008)

YELP REPUTATION:

* Yelp BBB Rating
* Is Yelp a Scam?
* Reviews of Yelp at Yelp
* Complaints Board Yelp Complaints page

Links in the original post were lost due to problems when updating this post. Since we will not longer be recommending Yelp we did not spend any more time making corrections to the original below. We did add the missing links in the information above so that others can make their own decisions.

Original Post Below

DO NOT start by logging into an existing personal Yelp account or at Yelp.com. You need to go to Biz.Yelp.com for Business Owners and to request Business Listings.

While there is some controversy over Yelp about Yelp Reviews, they do have a major amount of traffic (23 to 25 million unique visitors per month according to Compete) and if you only want to add one business it is one of the easier Local Search Directories you can get your business listed in.

NOTE: There are two separate log-ins for Yelp: One is a Business Owner login and the other is your individual Yelp account login. If you create an account for one it does NOT work to log-in to the other. It helps to think of them as two separate sites and ensure you are in the one applicable to what you wish to do. You may wish to create accounts for both. You can create them using the same log-in information if you wish – just remember you have to log into them separately.
HOW TO LIST A BUSINESS AT YELP:

1. Get a Yelp Business Owner Account
2. Search for your Business name, city and state. (Also check old business names you may have used in the past.)
3. If you find a listing for your business you will have to confirm by phone.  Yelp’s system will dial the phone number provided in your listing to confirm it is you. You have to be available to enter a code their Web site provides.
4. If you do NOT find a listing click on the link that says Having Trouble Finding Your Business.
5. Type in your business information.
6. Their system does not currently have an option for selecting 24×7 hours. Either do not select any hours OR use the hours you answer the phone.
7. You need to respond to an email to verify your email address.
8. After your submission is manually reviewed you will receive instructions on Claiming Your Business.
9. Log into your BUSINESS ACCOUNT (not your PERSONAL ACCOUNT) to:

* Add specialties
* Add business history
* Add business owner bio
* Create offers and announcements
* Upload photos
* Recommend other businesses
* Check statistics (on the Summary Tab)
* See reviews others have made about your business

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* Add specialties

* Add business history
* Add business owner bio
* Create offers and announcements
* Upload photos
* Recommend Other Businesses
* Check statistics (on the Summary Tab)
* See reviews others have made about your business

VOIDING YELP CONFUSION:

The Yelp system has some quirks:

1. Even though you enter your Web site URL it will not appear in your listing until your listing has been reviewed by a moderator at Yelp.
2. There is a sixty day waiting period before new accounts are unlocked. Only basic information about your business appears until your account is unlocked – even if you have already entered it into your business listing! If you try to claim your business early you will get the message “This Business Page Cannot Be Claimed At This Time. This business has been on Yelp less than 60 days and cannot be claimed at this time.”
3. If you attempt to log back into your business account shortly after creating it you may get “The email address or password you entered is incorrect.” Check your email confirmation and make sure you entered your email address and password correctly. If you did there is probably a technical issue that will resolve itself in a few hours or days as the information replicates across multiple servers at Yelp. All you can do is wait and try to log in again later. If that doesn’t work see the Yelp Caution in the next section of this post.
4. Although you CAN delete photos you upload for your business there does not appear to be any way to delete a photo you upload to your Bio in your Businesss account profile except by replacing it with another.

YELP CHALLENGES:
Like many other Local Directories, Yelp uses existing databases. Your business may already be listed OR when you enter it the city may be incorrect if there are other cities that use the same zip code.  If this occurs in an existing listing you can claim the business and edit the city. If it is a new listing you will have to contact Yelp to have this corrected or wait sixty days to do it yourself.

Their system sometimes refuses to accept a listing or address. Verify you are entering the address correctly or try changing the format you’re using to enter the address (remove periods, change spaces, abbreviate or remove abbreviations). If that doesn’t work you may have to contact Yelp.

YELP CAUTION:

If you work with more than one business be very careful using Yelp in the same browser on the same computer. If you log out of one account and into another you sometimes see information that belongs in the original account you were working in. To be safe you may have to delete cookies related to Yelp before logging into a different account.

If you accidentally log into one account’s information from a different email address it appears to delete your original email address and you may not be able to log back into the original account. If that happens create the account again or start at the Claim Your Business process (provided your listing has been on Yelp more than sixty days – see point 2 immediately above).
OFFICIAL YELP BLOG:

* Yelp Official Blog
* Contact Yelp to provide feedback or request assistance

YELP FAQS:

* Personal Yelp Account FAQs

* Yelp Business Owners Guide

NOTE: You can NOT always tell whether the information you are using is for the business or personal Yelp by looking at the domain URL. Some business owner information is on the Yelp.com domain (like the Business Owners Guide. When you are logged into your Business owners account you will be on Biz.Yelp.com.
YELP ON TWITTER:

If you need assistance try using Twitter to contact an official Yelp representative or Yelp Community Manager (CM). Here are the Yelp folks I’ve been able to locate so far.

* @Yelp – The official Twitter voice of Yelp HQ in San Francisco (formerly @YelpInc)
* @yelpmobile – Yelp Mobile
* @yelpdotcom – Identity not confirmed

YELP MANAGERS ON TWITTER:

* @cckarl – Chantelle Karl – Communications Manager for Yelp East Coast (including UK and Canada)
* @LutherLowe – Luther Lowe – Yelp’s Manager of Local Business Outreach

YELP COMMUNITY MANAGERS ON TWITTER:

* @PDXYelp – Don B – Portland, Oregon Yelp CM
* @yelpatlanta – Kathleen M – Atlanta, Georgia Yelp CM
* @yelpaustin – Kevin N – Yelp Austin CM
* @yelpboston – Yelp Boston, Massachusetts
* @yelpchicago – Colleen C – Chicago, Illinois CM
* @yelpdc – Yelp DC (Washington DC)
* @YelpDenver – Tiffany C – Yelp Denver CM
* @YelpEastBay – East Bay Yelp CM
* @Yelp_Houston – Yelp Houston
* @LeonYelpLondon – Leon Campbell – Camden, London
* @Lizzles_Yelp – Lizzie Gold – London
* @Yelp_London – Laura Nestler – Yelp London
* @YelpLA – Dawson – Los Angeles, Calif.
* @yelpmiami – Maria A – Yelp Miami, Florida
* @yelpminneapolis – Sarah Peterson – Yelp Minneapolis CM
* @YelpOC – Hazel Q – Yelp Orange County California
* @RuggyYelpSD – Ruggy Joesten – San Diego  CA
* @YelpSeattle – Katie S – Yelp Seattle CM
* @YelpSV – Connie C. – Yelp Silicone Valley
* @yelptoronto – Kat F – Yelp Toronto CM
* @yelp_vancouver – Crystal H. – Vancouver BC Yelp CM

If you know of any others let me know in the comments here or contact me at Twitter.
YELP  FOR BUSINESS OWNERS:

* Seven Steps for Yelp Success
* How to Manage Your Yelp Reviews
* Yelp vs OpenTable – Where Should Restaurants Spend Their Marketing Dollars?
* How Yelp and TripAdvisor Help Businesses Thrive

YELP REPUTATION:

* Yelp BBB Rating
* Is Yelp a Scam?
* Reviews of Yelp at Yelp
* Complaints Board Yelp Complaints page