The review service Yelp is warning that a court order to take down negative comments targeting a California law firm could have a devastating impact on online free speech.
Hassell Law group, a personal-injury law firm, accused a former client of defamation after she refused to remove what the firm calls “factual inaccuracies and defamatory remarks” from three Yelp reviews she posted in 2013.
A San Francisco judge ruled in June 2014 that the comments were indeed defamatory, and ordered Yelp to take them down—a departure from legal precedent because Yelp was not a party in the lawsuit. The company appealed and is asking the California Supreme Court to overturn the order, saying that forcing the site to scrub “negative” remarks could set a devastating precedent and threaten users’ freedom of speech.
Last month, several legal scholars sent a letter to the California high court in defense of Yelp’s position and laying out what they believe the far-reaching consequences of the lawsuit could be:
Say a business dislikes some comment in a newspaper’s online discussion section. The business can then sue the commenter, who might not have the money or expertise to fight the lawsuit. It can get a consent judgment (perhaps by threatening the commenter with the prospect of massive liability) or a default judgment. And it can then get a court to order the newspaper to delete the comment, even though the newspaper had no opportunity to challenge the claim, and may not have even heard about the claim until after the judgment was entered. This is directly analogous to what plaintiff Hassell did in this very case.
Yelp has always had a complicated relationship with small businesses. User-generated reviews are the heart and soul of Yelp’s business model. However, it has come under fire for not being able to appropriately distinguish between genuine assessments of a particular business or services and deliberately malicious messages posted by former employers or bitter customers to tarnish the reputation of a business.
Another complicating factor in Yelp’s already thorny relationship with small businesses is the fact that the company has been repeatedly accused of manipulating reviews as a selling tool — burying positive reviews to force businesses into buying more ad space on the site for instances.
Back in 2014, the Wall Street Journal reported that the Federal Trade Commission had received over 2,000 complaints since 2008 regarding Yelp’s best practices. In fact, Yelp receives an average of 6 subpoenas a month requesting reviewer information by owners who often feel their business has been unfairly defamed after refusal to advertise.
Yelp firmly denies these accusations.
Nonetheless, Aaron Schur, Yelp’s senior director of litigation, says the ruling “would really inhibit a website’s ability to provide a balanced spectrum of views online and make it more doubtful that people would get the information they need to make informed decisions.”
Most consumers don’t know they can face threats of legal action when posting negative reviews on a company’s page. Many businesses (such as law firms, medical practices, etc.) may have non-disparagement clauses preventing customers from criticizing them online. For this reason, this summer Yelp began rolling out consumer alerts to remind users of their First Amendment rights. 
The federal government has started taking some concrete steps towards protect consumer online speech. Last week, the House of Representative unanimously approved the Consumer Review Fairness Act, also dubbed the “Right to Yelp Bill,” which prohibits the inclusion of such gag clauses in consumer contracts. That means customers are free to share the experiences they’ve had with a company. But it does not apply to employer-employee and independent contractor contracts.
The bill is now headed to the Senate for a vote.
