JULY 16, 2013
Dentist’s Defamation Lawsuit Against Yelp Preempted by Section 230–Braverman v. Yelp
By Eric Goldman
Braverman v. Yelp, Inc., 2013 NY Slip Op 31407 (NY Sup. Ct June 28, 2013)
Mal Braverman is a Manhattan dentist. He sued Yelp for defamation based on two allegedly defamatory user posts. I’m not sure which posts are in question, but when I searched for “Mal Braverman” at Google today, his Yelp page was the first search result and the 3 unfiltered reviews were not flattering (though there are 27 filtered reviews–90% of the total number of reviews!–including some positive ones).
His lawsuit against Yelp is a ridiculously easy Section 230 case. If the case were brought in a state with strong anti-SLAPP protections, Braverman would be writing a check to Yelp. To get around Section 230, Braverman argued that Yelp “authored” the user reviews by (1) filtering out any positive reviews of Braverman; and (2) placing a list of other dentists entitled “Best of Yelp: New York — Cosmetic Dentists” (“Best of Yelp list”) on the same web page and encouraging users to use those dentists instead of Braverman.
His arguments go nowhere. Citing the Shiamili case (binding precedent on this court), the court says Yelp is entitled to immunity because this action is based on reviews written by other content providers — Yelp users — and not based on any content that Yelp itself created or developed.
Yelp’s alleged act of filtering out positive reviews does not make Yelp the creator or developer of the alleged defamatory reviews. Yelp’s choice to publish certain reviews — whether positive or negative — is an exercise of a publisher’s traditional editorial function protected by the CDA. Moreover, Section 230 does not distinguish between neutral and selective publishers in its grant of immunity.
In addition, Yelp’s placement of a Best of Yelp list on the same web page as the reviews does not make Yelp the creator or developer of the reviews. Yelp’s choice to insert a Best of Yelp list on the web page is an editorial choice as to what content to display on the page, and it is a separate section from the user reviews. Not even close.
I’ve previously mentioned that dentists seem unusually litigious towards negative consumer reviews. Other dentist cases I’ve blogged on include Reit v. Yelp (also involving a Manhattan dentist), Wong v. Jing and Lee v. Makhnevich. See my complete and newly updated roster of doctor/dentist lawsuits over patients’ online reviews.