LOS ANGELES—A three-judge panel of the Ninth Circuit Court of Appeals is considering a case in which a group of merchants are suing Yelp for extortion, accusing the review site of “offering to hide negative reviews and promote positive ones in exchange for ad buys.”
According to Media Post, “U. S. District Court Judge Edward Chen in the Northern District of California dismissed the cases in 2011, ruling that the federal Communications Decency Act (CDA) immunizes Yelp from liability for reviews authored by users. Chen also ruled that Yelp also is immune from liability for decisions about how to display those reviews—regardless of the company's motives in highlighting particular content.”
The case is potentially significant for the adult industry, which has a number of high-trafficked websites that also claim absolute protection under the CDA. In fact, the Electronic Frontier Foundation (EFF) has filed a friend of the court brief in the Yelp case, alleging serious repercussions if Chen is reversed and the CDA no longer provides blanket protection to companies even if they manipulate data, reviews and other content to their own benefit.
EFF is specifically worried about opening “the door to lawsuits against other sites that allow users to create content,” according to Media Post.
“If adopted,” it argued in its brief, “[the merchants’] approach would provide an avenue for other litigants to end-run the bright-line protections provided by the statute, jeopardizing service providers and undermining speech in the process.”
We do not know the specific facts of this case, or the extent to which Yelp actually manipulates data, but if it is as extensive as is being alleged, then maybe the CDA, like the DMCA (Digital Millennium Copyright Act), is also in need of tweaking in order to restore some balance to the marketplace. Unfortunately, this case also supports the contention by many that EFF, as effective as it has been over the years in its efforts to protect a free and open internet, really is so bound to an ideological point of view that it will oppose literally any effort by business to create an even playing field. In the realm of copyright, is there a pirate on the planet they would not defend? In the case of Yelp, is there any situation in which they will not support the absolute freedom of so-called internet service providers, no matter how extensively they may breach the “bright line” that appears to be inviolate only for some?
Likewise, in adult, the number of companies that use the CDA to absolve them of any responsibility for the content that flows through their networks and from which they derive sometimes massive revenue is increasing, not decreasing. To the extent that accusations similar to those being made by merchants against Yelp also would be made in the online porn industry, and we have no doubt that they would, cases like this will perhaps one day provide an avenue for relief without undoing the elements of the CDA that actually protect free speech on the internet.
