Daily Blast November 16, 2017

This week, the Court of Appeal, Fourth Appellate District, Division Three (Santa Ana), in Yelp, Inc. v. Superior Court (Nov. 13, 2017, G054358, G054422) __ Cal.App.5th ___, addressed the issue of whether Yelp as a nonparty had standing to assert an anonymous reviewer’s First Amendment rights, and whether the reviewer’s comments contained defamatory statements. (Slip. opn., pp. 2-3.) Yelp refused to produce documents that might reveal the identity of the reviewer. (Ibid.) The trial court concluded that Yelp lacked standing to assert the First Amendment and that the plaintiff made a prima facie showing of defamation. (Ibid.) Thus, the trial court ordered Yelp to produce the documents and issued sanctions. The Court of Appeal concluded the trial court erred in finding Yelp lacked standing, but affirmed the order based on the finding that the reviews were defamatory. (Id. at p. 3.)

In the underlying case, the plaintiff assisted the defendant in preparing various tax return documents. (Slip opn., p. 3.) After a disagreement regarding the balance owed for services rendered, the defendant posted a review on Yelp using an alias. The review stated: “Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.” (Id. at p. 4.) The plaintiff sent a deposition subpoena to Yelp seeking its business records, to which Yelp objected. (Ibid.)

The Court of Appeal concluded that Yelp had standing to assert the reviewer’s First Amendment rights. It reasoned, “Yelp is the host of the website where the anonymous [reviewer] posted the review of [plaintiff’s] professional services, and it has a substantial interest in protecting the right of its users to maintain their anonymity when posting reviews.” (Slip opn., p. 8.) Courts have similarly concluded that a content provider has standing to assert the First Amendment and privacy interests of a third party who contributed content anonymously. (Id. at pp. 8-9, citing Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541 [allowing a nonparty newspaper to assert First Amendment rights]; Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 230 [digital music site operator has standing to assert the First Amendment rights of an anonymous commenter].)

The Court of Appeal, however, agreed that the review was defamatory. Therefore, the court’s order compelling the production of documents was correct on the merits. (Slip. opn., p. 14.) The court relied on ZL Technologies v. Does 1-7 (2017) 13 Cal.App.5th 603, which held “[w]hen vigorous criticism descends into defamation . . . constitutional protection is no longer available. Thus, a plaintiff seeking discovery of the anonymous person’s identify must first make a prima facie showing the comment at issue is defamatory.” (Id. at p. 613.) While Yelp argued the review contained only opinions, the court concluded the reviewer made false assertions of fact and predictions of what future clients might expect from dealing with the plaintiff, which were sufficient to establish a prima facie case for defamation. (Id. at p. 18.)

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