Dentist’s Defamation Lawsuit Against Yelp Preempted by Section 230–Braverman v. Yelp
By Eric Goldman, July 16, 2013
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.
New York Trial Court dismisses Braverman V. Yelp
“Online v. Offline Agreements: Braverman v. Yelp”
By Susan Ross, Social Media Law Bulletin, March 17, 2014
A New York state trial court recently ruled in a long-running dispute between a cosmetic dentist and Yelp, the online consumer review site. Braverman v. Yelp, Inc., No. 158299-2013 (N.Y. Sup. Ct. Feb. 24, 2014).
The dentist originally complained that Yelp had defamed him by permitting negative reviews about him to appear on Yelp’s site. That claim had previously been denied because the federal Communication Decency Act safe harbor protected Yelp as a publisher of third-party content.
In the current matter, the dentist complained to Yelp personnel that Yelp had been filtering out positive reviews about his services. He claimed that Yelp personnel advised him to become a paid Yelp advertiser, and then his favorable consumer reviews would appear on the same web page as the unfavorable consumer reviews.
The dentist enrolled as a paid advertiser, at $350/month. As a part of the enrollment process, the dentist agreed to Yelp’s online agreement. The online agreement stated that:
- The purchase of advertising programs would not influence Yelp’s automated software for online reviews or otherwise enable the purchaser to reorder online reviews;
- The agreement merged and superseded any and all prior oral, emailed, or written representations and agreements between the parties (a “merger clause”); and
- The forum for any litigation was California.
When the favorable consumer reviews did not appear on the same web page as the unfavorable reviews, the dentist filed a lawsuit in New York state court, claiming breach of contract. Yelp moved to dismiss the claim based on documentary evidence, or, in the alternative, based on the online agreement’s forum selection clause.
The court agreed with Yelp and determined that Yelp’s documentary evidence of its online agreement terms “flatly contradicts” the dentist’s claim, and dismissed the breach of contract claim. But the court found that the dentist had adequately stated a claim for fraudulent inducement to enter into a contract.
The court then asked whether this potential fraud claim, by itself, was sufficient to invalidate the online agreement’s forum selection clause. The court held that it did not. The court ruled that the dentist never alleged any fraud with respect to the forum selection clause, nor had the dentist demonstrated that litigating in California would be “so financially prohibitive that, for all practical purposes, plaintiff would be deprived of his day in court.”
Therefore, the court dismissed the dentist’s complaint in its entirety.