Can I Sue Yelp for Defamation?
You can't sue Yelp. Section 230 of the Communications Decency Act of 1996 immunizes internet platforms, such as Yelp, from lawsuits for content posted by third parties. If you believe someone defamed you in a customer review on Yelp, you wouldn't be able to win a defamation suit against Yelp itself.
But you may be able to sue the person who posted the online review for defamation if you can establish that the post was a false statement and damaged your reputation. The main obstacle will likely be identifying and locating the person who you believe defamed you. A skilled personal injury lawyer could help guide you through this process, give you legal advice, and represent you in court if you do decide to sue.
What Is Yelp?
If you've ever searched for restaurant or business reviews on the internet, you probably have encountered Yelp. Yelp was founded in 2004 as a crowd-sourced online directory for businesses. You can search Yelp using its website or an app and get listings filtered by, among other things, location, price range, delivery service, and the ability to accept reservations.
Yelp has a social aspect. It encourages Yelp users to leave written reviews and star ratings of places in its directory, as well as post pictures of their experiences there. As of December 2021, about 244 million reviews were available on Yelp.
Yelp's review system is somewhat controversial. Some believe it's unreliable. Less scrupulous business owners will try to promote their businesses by posting fake positive reviews. Similarly, some unhappy people will go out of their way to punish a business by leaving a scathing or even a false review. And negative yelp reviews can really hurt a business.
Suppose you own a popular diner in a sleepy river town. Your customers consist largely of regulars and tourists. You are particularly proud of your stellar 5-star Yelp rating and revel in the unanimously positive reviews you've earned. You make it a point to thank folks on Yelp who have said nice things about your business, so you check to see if there are any honest reviews at the end of each day.
Everything is going swimmingly, until one day when you sign in you see that your rating has dropped to a mediocre 4.2 stars. You have no idea what happened, until you scroll down and see the following one-star review posted by someone named Waldo:
This place sucks. The food is terrible. No one in their right mind would want to eat here. Besides, I heard that the Health Department shut them down for a month because the kitchen was filthy! Maybe it still is – it would explain why the food is so bad.
You are both outraged and crushed. This entire bad Yelp review is a lie. No one has ever said that your food is anything other than delicious. You have never gotten any negative comments. And you have never even received a citation, let alone been shut down by the Health Department.
After the shock wears off, you grow worried. You don't think the review will be trending on social media, but even one negative review can hurt your small business. You ask Yelp to pull the false review, but they won't do it. Which makes you mad — like, call a lawyer mad. You don't know who this Waldo is, but since they refused to remove the review, you believe that you should be able to sue Yelp for defamation. Why can't you?
First, a little background.
A Brief History of the Internet
The internet has been around longer than you think. It started in the 1960s — more than 50 years ago — as a way for government researchers to share information. Back then, computers were large and immobile. If you wanted to make use of the information, you would need to go to the site of the computer or mail magnetic computer tapes through the post office.
Meanwhile, in 1957, the Cold War heated up with the Soviet Union's launch of the Sputnik satellite. As tensions increased, the U.S. government became concerned about the ways in which information could be disseminated in the event of a nuclear attack. The Defense Department formed the Advanced Research Projects Agency Network (ARPANET), the first online network, but limited membership to certain academic and research organizations with contracts with the federal government.
In response to this, other entities created their own online networks to facilitate information sharing. But one obstacle they encountered was that the individual networks had no way to communicate with each other. After some work, they were able to develop a new communications protocol called Transfer Control Protocol/Internetwork Protocol (TCP/IP). TCP/IP permitted computers on different networks to communicate.
On January 1, 1983, the Defense Data Network and ARPANET adopted TCP/IP and the nascent internet was born. As other networks began to adopt TCP/IP (which remains the universally accepted worldwide standard today), the internet began to grow.
Internet Regulation and Section 230
In its early years, the internet was much like the Wild West. Virtually anything and everything, from cooking recipes to child pornography, could be shared online anonymously. Internet service providers became concerned that they might be held liable for indecent and often illegal material posted on their platforms. They lobbied Congress for relief from civil lawsuits based on such content.
In 1996, Congress passed the Communications Decency Act as part of Title V of the Telecommunications Act. This statute represented Congress's first noteworthy attempt to regulate pornography on the internet. Although the U.S. Supreme Court later struck down the anti-porn provisions of the Act, one section that survived was section 230.
Section 230 authorizes internet providers and platforms (called “interactive computer services" to block and screen “offensive material." Section 230(c)(1) essentially states that no provider of an “interactive computer service" shall be treated as the publisher or speaker of information provided by another content provider. Courts have construed this provision to immunize internet service providers and platforms from most lawsuits relating to content posted by third parties.
You Can't Sue Yelp
Because of section 230, you would not be able to sue Yelp for any harm caused by the negative consumer review. Yelp is considered to be an interactive computer service. The review was posted by someone other than Yelp (even if Yelp has the power to remove the review). Yelp is immune from a civil suit related to the content of the review, regardless of the legal theory you wanted to pursue. So your defamation lawsuit against Yelp would be a waste of time.
You May Be Able to Sue the Reviewer for Online Reviews
But that doesn't mean you are out of luck. Although it will take time and effort, you may be able to find Waldo and sue them for defamation.
Defamation is a legal claim that allows you to recover money for harm done to your reputation. If it's in writing, it's called libel. If it's spoken, it's called slander. Regardless of the form, you need to prove the following elements to establish defamation:
- Someone made a statement
- The statement was published
- The statement caused you harm
- The statement was false (in some states, the party you are suing has to prove the statement was true)
- The statement was not privileged (in some states, the party you are suing has to prove that the statement was privileged)
Your negative review would give rise to a defamation claim. Someone definitely made a statement — “Waldo" wrote a review. The statement was published — Waldo posted it on the internet for the world to see. The statement hurt your business reputation, so the law would assume that it caused you harm. In your view, the statement was false in every respect. And it wasn't privileged under the law (such as a statement made by a testifying witness at a trial).
Opinion v. Fact
The wrinkle you face is telling the difference between fact and opinion. Opinions aren't “false," even if they are not sincere. Only facts can be false. You would need to show that the statement is one of fact and not an opinion in order to recover for defamation.
Let's go through the review. “This place sucks" is an opinion. “The food is terrible" is also an opinion, even if it's not true, as is "no one in their right mind would want to eat here." You would not be able to sue for these statements no matter how much they hurt your business. You can't prove that someone's opinion is “false." Even a bald-faced liar has a First Amendment right to believe what they want.
The next sentence, however, is different. “Besides, I heard that the Health Department shut them down for a month because the kitchen was filthy." This is a statement of fact. Either the Health Department has shut you down or it hasn't. This isn't a matter of belief — you can prove that you were never shut down by the Health Department. Because it's a statement of fact, it would support a defamation claim.
The final sentence is harder. “Maybe it still is – it would explain why the food is so bad." It feels mixed. The first part, “maybe it still is" refers to the kitchen being dirty. Again, you could show that the kitchen isn't dirty, so a court would likely view this part as a statement of fact. The next part, however, is Waldo's opinion that the food is bad. So while the first part might support a defamation claim, the second part probably wouldn't.
Since you can establish that part of the review is a defamatory statement, a court could award you damages. Compensatory damages are monies intended to compensate you for any losses you have sustained, such as the harm to your reputation.
In some cases, if the statement is particularly outrageous, you may be able to recover punitive damages in a defamation case. Punitive damages are intended to punish a wrongdoer for extremely egregious behavior and to deter others from engaging in similar misconduct. In your case, a court would probably think that the bad review wouldn't justify a punitive damages award, but you never know. A skilled lawyer can be very persuasive.
If you could only find out who and where “Waldo" is. Here's where an experienced lawyer can be essential.
When someone uses a device that accesses the internet, they leave a digital bread trail that can be traced to their internet protocol (IP) address. IP data can reveal a lot of information about a device's user, including:
- When they logged onto a platform
- Their geolocation
- Their timestamped activities
The key to finding Waldo is uncovering their IP address.
There are several ways to go about this, but lawyers do it all the time. The process may involve bringing a lawsuit against a “John Doe" and serving a subpoena on Yelp (They will probably refuse to comply with the subpoena, so your lawyer will likely need to get a court order).
Once your lawyer has Waldo's IP address, you can figure out Waldo's location. From there it's only a few more steps before your lawyer can shout, “There's Waldo!" Waldo can then be substituted for “John Doe" in your lawsuit and that's who you would recover any compensatory damages from.
A Good Lawyer Isn't Hard to Find
Your lawsuit against Yelp is dead in the water, but that doesn't mean you have to put up with defamatory reviews, even if they are anonymous. The bottom line is that a skilled personal injury lawyer who handles defamation claims may be able to uncover the identity of your detractor.
If you do decide you want to pursue a defamation case against someone who left you a negative yelp review, consider consulting with a law firm that can give you legal advice about your claim and help you decide whether legal action is your best option.