Yelp takes a SLAPP at free speech

The popular review website Yelp is seeking closure in a long-standing feud with business owners, placing free speech under the microscope. The Virginia Supreme Court will soon decide whether to take up a case regarding whether Yelp can be forced to turn over the identities of its reviewers during libel litigation. A ruling in Yelp’s favor would ultimately be a loss for free speech, as would the passage of “anti-SLAPP” (Strategic Lawsuit Against Public Participation) legislation removing businesses’ ability to sue for the identity of anonymous reviewers. The company has already lost appeals in two lower courts.

Yelp has been vigorously lobbying for anti-SLAPP legislation under the guise of protecting free speech. However, the reality is that such laws dangerously detach responsibility from speech. It is better for businesses, Yelp, and reviewers to solve their differences in civil court, maintaining the notion of liability as a part of speech.

Speech, like any right, entails responsibility. It can be used to cause malicious harm to others when wielded dangerously. Just like a weapon, one’s right to speech does not include using it towards intentionally destructive ends. This is precisely why civil courts give individuals the ability to seek damages in cases of defamation.

Thus, a court decision blocking businesses from litigating libel would sever the tie between responsibility and right. There’s already cause for reasonable fear that competitors are defaming businesses through Yelp. According to the New York Times, a carpet cleaner was able to demonstrate that several negative reviewers have never used his service, while a tire repair shop was accused of a “shady hack-job repair” for a service it didn’t offer. In short, businesses want to pursue claims they have reason to believe are not based in fact.

Libel litigation shouldn’t be seen as censorship. It does not in anyway eliminate one’s right to speak freely, as laws against hate speech strives to do. Yelp supporters may fear that a ruling not in the company’s favor would leave users afraid of writing reviews. However, such de facto censorship seems unlikely. Yelp receives only six subpoenas per month, only some of which seek the names of suspected libelous users. Given the site’s immense traffic, the danger of widespread defamation cases seems a bit misplaced.

Through a civil court, businesses would not be able to attack anyone for leaving a legitimate negative review. Negative experiences and fictional experiences are a distinction in court cases relevant to the assessment of liability. Courts would dismiss frivolous cases brought by businesses, especially when the anonymity of a reviewer is at stake.

Moreover, Yelp could face pressure from its users to more aggressively filter comments it believes to be fraudulent. Careful monitoring on Yelp’s behalf would give users peace of mind from wanton defamation lawsuits. In addition, businesses would be forced to understand when they have grounds to sue.  Of course, the truth is always an absolute defense in these cases, which inherently protects the right to speech and opinion.

A denial of Yelp’s appeal would protect the current legal process that lends itself to free speech and its ramifications. Preventing malicious lies while requiring businesses to prove that they have been damaged beyond a reasonable doubt is the only equitable way forward. Other solutions simply favor one party at the cost of another. A country serious about the protection of freedoms must be serious about their responsibilities as well.

Curtis Tate is a Young Voices Advocate studying law in Michigan.