9th Circuit Rules for Yelp, Dismissing Kimzey SLAPP Lawsuit

Judges Andre Davis, Michael Hawkins and Margaret McKeown unanimously voted to reject Kimzey’s appeal based on briefs in the case. Yelp has faced multiple strategic lawsuits against public participation (SLAPPs). The company's experience with those lawsuits led it to become a leading advocate for anti-SLAPP bills like the proposed federal Securing Participation, Engagement and Knowledge Freedom by Reducing Egregious Efforts Act (HR-2304).

The 9th Circuit affirmed the District Court ruling in part based on Kimzey’s claim that Yelp adapted the negative review from one on another website. “Threadbare allegations of fabrication of statements are implausible on their face and are insufficient to avoid immunity under the CDA,” said McKeown in the panel’s opinion (in Pacer). “Were it otherwise, CDA immunity could be avoided simply by reciting a common line that user-generated statements are not what they say they are.” CDA immunity doesn’t extend “to content created or developed by an interactive computer service,” the 9th Circuit said. “But the immunity in the CDA is broad enough to require plaintiffs alleging such a theory to state the facts plausibly suggesting the defendant fabricated content under a third party’s identity. Here there are no such facts.”

Kimzey’s argument that Yelp “transformed” the reviewer’s content via advertising, promotion and the use of its five-star rating system extends the “concept of an ‘information content provider’ too far and would render the CDA’s immunity provisions meaningless,” the 9th Circuit said. Instead, there must be proof the website made “a material contribution to the creation or development of content.” Even if a one-star rating could be proven to be “understood as defamatory,” the system “does ‘absolutely nothing to enhance the defamatory sting of the message’ beyond the words offered by the user,” the 9th Circuit said. “We fail to see how Yelp’s rating system, which is based on rating inputs from third parties and which reduces this information into a single, aggregate metric is anything other than user-generated data.”

Section 230 immunity covers Yelp against Kimzey’s claim that Yelp could be held liable for downstream distribution of the negative review via search engines, the 9th Circuit said. “Nothing in the text of the CDA indicates that immunity turns on how many times an interactive computer service publishes ‘information provided by another information content provider,’” the 9th Circuit said. “Just as Yelp is immune from liability under the CDA for posting user-generated content on its own website, Yelp is not liable for disseminating the same content in essentially the same format to a search engine, as this action does not change the origin of the third-party content.”

The 9th Circuit “rightfully confirmed that federal law protects Yelp's ability to provide its forum for online reviews, which allows millions to openly describe their experiences with local businesses,” said Yelp Senior Director-Litigation Aaron Schur in a statement. “Cases like this demonstrate the lengths some businesses go through to stifle consumer speech, and show why important legal protections -- like the [CDA] and the proposed federal anti-SLAPP law currently before Congress -- are important tools to allow consumers and online publishers to defend against these sorts of baseless claims.” Kimzey told us he is considering seeking an en banc 9th Circuit review of the three-judge panel's ruling. He said he was surprised the 9th Circuit panel judges "don't believe that a one-star rating is defamatory."

The ruling “upholds” Section 230 protections, “which have become key to free and open dialogue on the internet,” said R Street Senior Fellow Steven Greenhut in a statement. “If the appeals court had accepted the plaintiffs' bizarre argument that third-party reviews hosted on a website constitute 'advertising' by that site, the result would be to stifle free expression and to erode the consumer trust that makes so much internet commerce possible."