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Posted on Thursday, March 19, 2015

Yelp Gets a Pass On Negative Social Media Post

The Fourth Circuit Court of Appeals recently issued a decision having a big impact on how businesses must deal with disparaging commentary on social media.  In Westlake Legal Group v. Yelp, Inc., the court rejected a Virginia law firm’s claim against Yelp complaining about defamatory comments on the firm posted on Yelp’s website.  Yelp asserted that the case should be dismissed, arguing that federal law provided it and other social media companies immunity from such lawsuits.The Fourth Circuit Court of Appeals agreed with Yelp and dismissed the firm’s case, rejecting the argument that the victim of a false social media post can sue computer service providers.  Citing the Communications Decency Act (‘CDA’), the court ruled that the CDA bars such businesses “from holding interactive computer service providers legally responsible for information created and developed by third parties.”  Basically deeming Yelp an electronic billboard immune for posts that could be defamatory, the court ruled that Yelp could not be sued without facts showing that “that any alleged drafting or revision [by Yelp] … was something more than a website operator performs as part of its traditional editorial function.”

The Westlake decision is significant for several reasons.  It shows that if any individual or business wants to legally challenge defamatory social media, it should ‘keep its powder dry’ and not waste time and money suing the social media company posting the content.  Social media providers like Yelp will likely get a broad pass of immunity for such claims.  Rather, anyone challenging anonymous false statements on social media should focus on so-called ‘unmasking’ cases which could permit subpoenas for business records from the Yelps of the world (such as recently allowed in the Madeed Carpet case) to identify and attack the actual author of the post.  Understanding these rules of the road for challenging disparaging social media can make the difference between protecting one’s reputation and wasting valuable time and money.

Seth Berenzweig is the founding and Managing Partner of Berenzweig Leonard, LLP, and often appears on national media to discuss breaking news business developments.

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