Ninth Circuit Upholds Communications Decency Act Immunity Against Plaintiff’s Attempt to “Push Envelope of Creative Pleading”
On Monday, a panel of the Ninth Circuit unanimously ruled that Section 230 of the Communications Decency Act (“CDA”) protected Yelp from liability relating to an allegedly defamatory user-generated review. In doing so, the Court rejected several attempts by the Plaintiff to plead around the CDA’s broad immunity provisions by accusing Yelp of playing a more direct role in the review’s creation and dissemination. By dismissing Plaintiff’s arguments at the pleading stage, this case helps to cabin the Ninth Circuit’s Roomates.com opinion, which opened an exception to CDA protection that plaintiffs’ lawyers regularly try to allege.
The Plaintiff is a locksmith. After a third party, Sarah K, left a negative Yelp review of the Plaintiff’s business, the Plaintiff sued Yelp on a pro se basis.
The CDA immunizes “providers” of “interactive computer services” against liability arising from content created by third parties, and as such, user-generated content like Yelp reviews fall squarely within the CDA’s wheelhouse. However, under previous Ninth Circuit precedent in Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, the CDA does not protect parties who are also an “information content provider,”—that is, if the defendant is themselves responsible for the creation or development of the offending content. 521 F.3d 1157, 1162 (9th Cir. 2008). The Plaintiff attempted to plead into this exception by alleging that Yelp made the user’s post its own by (1) actively pulling Sara K.’s review from another website, and/or fabricated the review under Sara K.’s identity; (2) contributing to the review by designing and providing its 5-star system; and (3) republishing the review as a promotion on Google’s search engine. Using strong language, the Ninth Circuit panel “declined to open the door to such artful skirting of the CDA’s safe harbor provision.”
First, the Court refused to credit Plaintiff’s allegation that Yelp found the relevant review on another website and appropriated the review for its own website. Citing to both Iqbal and Congress’s intent to promote “free exchange of information and ideas over the Internet” through the CDA, the Court concluded that the Plaintiff failed to allege any facts plausibly suggesting that the review was not posted by Sarah K. onto Yelp’s platform.
Second, turning to Yelp’s 5-star rating system, the Ninth Circuit followed its sister Circuit Courts to find that the CDA’s exception to immunity only applies when a party helps to create or develop the allegedly illegal or actionable elements of the user-created content. Thus, because Yelp’s five-star rating system is a neutral tool that aggregates individual users’ input, Yelp’s involvement in creating the five-star rating does “absolutely nothing” to enhance the defamatory aspects of the user’s post and cannot expose Yelp to liability.
Third, and finally, the Court rejected Plaintiff’s argument that Yelp sacrificed its CDA immunity by republishing its user’s review on third-party platforms such as Google. Notably, this was true even if, as Plaintiff alleged, Yelp leveraged its user’s reviews as advertisements to drive traffic to the Yelp website, at least so long as the content is republished “in essentially the same format.”
All told, while it is not surprising that the CDA shielded Yelp from potential liability for its user’s content, the strong language in this case will likely provide similarly situation defendants with ample ammunition to challenge artful pleadings and resolve CDA immunity issues in an early motion to dismiss.