Revisiting Freedom of Speech on Yelp Amid a Pandemic

Lauren Alevizos- Long before March 2020, restaurants have relied upon positive reviews on Yelp to boost business. Even a jump from 3 stars to 3.5 stars can increase a restaurant’s chance of reaching capacity at peak dining times from 13% to 34%. How is this so? Because nearly half of people check Yelp reviews prior to visiting a business for the first time.

Despite the pandemic, Yelp continues to be an online powerhouse, boasting more than 178 million unique visitors monthly in 2020. The danger of this popularity is especially evident when users erroneously abuse the platform to the detriment of well-intentioned businesses.

Disgruntled Americans have turned to Yelp as an outlet for their frustrations against safety protocols in place at restaurants to mitigate the spread of COVID-19. One restaurant in San Francisco received numerous low-star reviews over a span of several months that criticized the “uncomfortable dining experience” created by the restaurant’s safety practices. For instance, the restaurant requires patrons to wear face coverings while seated and reading over the menu. These protocols, however, are not solely determined by the restaurant, but are created in compliance with San Francisco’s face coverings order. Conversely, Yelpers “have given negative reviews to restaurants they perceive as not following state COVID-19 regulations.”

Many restaurants have had to release staff and offer reduced menus due to the pandemic. To hold restaurants accountable for the same level of service prior to the current health crisis is unrealistic. The limited recourse available to businesses creates reliance on protection afforded by legislative acts or Yelp’s intervention. Either way, the law in this area has certainly not predicted the current pandemic and Yelpers’ responses.

Legislative Protections

Section 230 of the Communications Decency Act (47 U.S.C. § 230(c)(1)) declares that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This relieves service providers like Facebook, Twitter, and Yelp from being held liable for the content its users produce. The California Supreme Court strengthened the reach of Section 230 in Hassell v. Bird when it held that the protections of Section 230 still exist regardless if the content provider is a non-party in the matter.

The Consumer Review Fairness Act (CRFA) protects honest Yelpers and businessowners alike. The CRFA prohibits businesses from “threaten[ning] or penaliz[ing] people for posting honest reviews.” Conversely, businesses may seek removal of a review if it:

  1. Contains confidential or private information;
  2. Is libelous, harassing, abusive, obscene, . . . or is inappropriate;
  3. Is unrelated to the company; or
  4. Is clearly false or misleading.

The Federal Trade Commission notes that an assessment or opinion likely does not meet the “clearly false or misleading” standard.

Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws have also been enacted in thirty states. While protections vary by state, these laws generally protect individuals who exercise their First Amendment rights and are consequently sued for it by providing a way to quickly dismiss a meritless suit.

Yelp’s Protections

In July, Yelp launched a feature that sent pop-up reminders to caution users to be more understanding of businesses prior to posting a review. Yelp has also offered to intervene in instances where reviews were based on a restaurant’s enforcement of COVID-19 safety procedures, rather than the quality of the dining experience. Consequently, Yelp’s removal rate has significantly increased during the pandemic.

This month, Yelp launched a new feature that allows users to provide feedback on how a business enforces COVID-19 safety practices. For instance, users can check whether the business adheres to social distancing or whether employees wear masks. The results will show the consensus over the previous twenty-eight days.

Concluding Thoughts

What appears at issue here is the friction between the liberties afforded to Yelp users and the unprecedented challenges that businesses are currently facing. Yelpers who are slamming businesses for abiding by local rules could argue that they are just presenting an opinion that may impact a potential patron’s decision to eat at a restaurant. However, businesses may look to the CRFA and assert that such claims are “unrelated to the company.” Such issues may be lessened by the recent feature that allows users to select whether safety protocols have been observed. This eliminates the subjective nature of a review and allow for only objective feedback.

Regardless, it appears that Yelp is intervening in this friction by removing reviews that express sentiments about safety protocols. This may render the protections afforded by Section 230 meaningless as Yelp is directly involving itself in reviews. While all of these issues have not come to a head yet, they exemplify just one way that the laws are inadequate at addressing the unforeseen challenges of today.

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