A Cry For 'Yelp': When Social Justice, Good Intentions, And Legal Liability Collide

There are some big reasons why Yelp may have taken on much more than social justice in its new policy.

“The heresy of heresies was common sense.” — George Orwell, 1984

Just when you think you have seen everything, something else pops up that surprises you. Admit it — many of us have found ourselves in this place and being amused at the discovery.  That said, rarely is this occurrence something so confounding, so jaw-droppingly unbelievable that it literally stops you in your tracks. I must admit, this happened to me this past week when I read that Yelp posted that it has rolled out a new feature that can only be described as wokeism gone wild — a consumer alert designed “to warn consumers about businesses associated with egregious, racially charged actions.” The alert? A new “Business Accused of Racist Behavior Alert” (BARBA) to be placed on the Yelp page of the accused business. You read that correctly.

If you are thinking that this article is going to be political, relax in the knowledge that your worries are misplaced — I prefer to present my musings on law and technology so you can think about the issue presented and engage in (hopefully) legitimate discourse. For the record, I despise racism in all its forms — it is simply abhorrent to me. My focus in this article will be the problems and commensurate liability that Yelp has now willingly decided to foist upon itself by this ill-conceived policy, no matter how well-intentioned. I will leave the politics to the Beltway pundits.

Before I delve into the legal absurdity of this policy, let’s start with some additional context from Yelp on it. As Yelp states in its blog post about this new policy: “As the nation reckons with issues of systemic racism, we’ve seen in the last few months that there is a clear need to warn consumers about businesses associated with egregious, racially charged actions to help people make more informed spending decisions.” Under the guise of “ensur[ing] the trust and safety of [its] users” and “provid[ing] them with reliable content to inform their spending decisions, including decisions about whether they’ll be welcome and safe at a particular business,” Yelp has decided to take the step of flagging businesses with the scarlet letter of “racist.” Here is the crux of their new policy.

If someone associated with a business is accused of, or the target of, racist behavior, we will place a Public Attention Alert on the business page to warn consumers that the business may be receiving an influx of reviews as a result of increased attention. For businesses accused of overtly racist actions, where we can link to a news article, we will escalate our warning with the Business Accused of Racist Behavior Alert. (emphasis added).

In sum, if someone merely accuses a business of racist behavior, the business gets a Public Attention Alert; if the accusation rises to the level of “overtly racist actions,” then they get the dreaded BARBA.

No matter how well-intentioned, Yelp’s execution leaves a lot to be desired. Here are three big reasons that Yelp may have taken on much more than social justice in its new policy:

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1. Mere accusations are not enough. Perhaps there most chilling part of this policy is that accusations can trigger an initial alert, and accusation-plus-media article can trigger the BARBA. Anyone who follows the litigation involving Yelp reviews knows that businesses have sued reviewers for defamatory reviews (prompting the passage of the Consumer Review Fairness Act in 2016). Businesses taking exception to negative reviews is one thing, but being labeled as exhibiting “racist behavior” takes things to a whole new level. Without question, applying the BARBA to a business will impact the bottom line of that business, all premised upon an accusation ostensibly corroborated by “resounding evidence” supported by an article from a “credible media outlet.” What does all that mean? How is the evidence authenticated? What is a “credible media outlet? What qualifies as “”resounding evidence”? I find it hard to believe that Yelp did not consider these points extensively and the likelihood of litigation that will be brought against them for applying a BARBA to a business. And as you will see, Section 230 immunity may not be Yelp’s friend under such circumstances.

2. Reliance on Section 230 immunity is misplaced. As I have written numerous times before (and most recently here), Section 230 provides a broad immunity to online service providers from civil liability for damages arising out of defamatory, tortious, and even illegal content that its users post onto the platform (such as third-party comments posted in response to an article posted on a social media platform). It also protects such providers from civil liability for damages for the moderation or restriction of content posted on the platform. The problem here is that the provider is the one posting the content, making its own editorial decision based on the “evidence.” Although current Section 230 jurisprudence continues to reflect broad immunity for online service providers, the current political climate has brought this issue to the fore, and it is highly unlikely that actions taken by such platforms to moderate speech will remain untouched (let alone content in the nature of a BARBA). In fact, FCC Chairman Ajit Pai recently announced that the FCC is asserting jurisdiction of the interpretation of Section 230 and will be promulgating rulemaking to address the scope of immunity conferred under the statute. I don’t know about you, but when the FCC chairman states that such providers “do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters,” I would not be changing policies that rely on current Section 230 protections.

3. Subjective moderation without objective guidance equals trouble. Odd as it may seem, Yelp may arguably be a victim of its own new policy. As reported in the Tampa Bay Times, searches for “dog meat” brought up Korean restaurants and “cat meat” brought up Chinese restaurants. “Credible media outlet”? Check. Ostensible evidence (let alone accusation) of racist conduct? Seems like it. Before you jump to the conclusion that Yelp was being overtly racist and should BARBA itself, it seems that these unfortunate search results stemmed from its own algorithm and how it “learns” from user-generated reviews. But that is the point — although Yelp is not relying on algorithms to make this determination but on content moderators to make these subjective determinations, they are doing so based upon fuzzy criteria and opaque guidance. Any way Yelp approaches this issue, it seems impossible to avoid the prospect that many of its business users will be deeply distrustful of this new policy without more guidance.

It does not take a stretch of the imagination to realize that this new policy will be quickly tested and will create some significant legal headaches for Yelp. Why are third-party Yelp reviews that may flag potential racism not enough?  Yelp claims that “[m]aintaining the trust consumers have in Yelp is a top priority.” Unfortunately, this policy in its current form is rife with problems and can easily foster consumer distrust in the Yelp platform if not executed properly. Time will tell whether they succeed.


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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.