Douglas Kimzey v. Yelp!
836 F.3d 1263
| 9th Cir. | 2016Background
- Plaintiff Douglas Kimzey (pro se) owns Redmond Mobile Locksmith and sued Yelp after one-star and negative user reviews appeared on Yelp and were searchable via Google.
- The complaint alleged Yelp "caused to appear" a libelous review, republished user content as promotions/ads on Google, and created the star-rating display, so Yelp effectively authored or developed the content.
- Claims asserted: RICO, Washington Consumer Protection Act, and state defamation/libel; plaintiff sought to avoid CDA § 230 immunity by alleging Yelp created/developed the content.
- Yelp moved to dismiss under Fed. R. Civ. P. 12(b)(6) and to strike under Washington’s anti‑SLAPP statute; the district court dismissed, finding § 230 immunity and implausible factual allegations.
- On appeal the Ninth Circuit considered whether Yelp is an "interactive computer service," whether the disputed content was "provided by another information content provider," and whether Yelp’s rating/republishing actions constituted "creation or development" under § 230(f)(3).
- Court affirmed dismissal: found Yelp is an interactive computer service, the disputed statements originated with a third‑party user, and plaintiff’s allegations were conclusory or implausible and insufficient to show Yelp materially created or developed the content.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Yelp is protected by CDA § 230 for posting the user review | Kimzey: Yelp republished or adopted content from another site and thus is the effective author | Yelp: It is an interactive computer service that published third‑party content; § 230 immunity applies | Held: Yelp is protected by § 230; plaintiff failed to plausibly allege Yelp authored content |
| Whether Yelp became an "information content provider" by creating the star‑rating system | Kimzey: Yelp designed the star image/color and thus created/developed the rating and content | Yelp: Star system is a neutral tool aggregating user inputs, not content development | Held: Star‑rating is a neutral, user‑generated aggregate and does not make Yelp a content developer |
| Whether republishing or promoting reviews via Google transforms Yelp into an author | Kimzey: Republishing as ads/promotions on Google made Yelp the author of that iteration | Yelp: Republishing or distributing the same third‑party content does not change its origin | Held: Dissemination/replication does not equal creation; § 230 immunity still applies |
| Whether plaintiff pleaded sufficient facts to avoid dismissal | Kimzey: Allegations that Yelp copied reviews, promoted them, and participated in a fraudulent locksmith scheme suffice | Yelp: Allegations are conclusory and implausible; plaintiff failed to allege required elements (e.g., RICO predicates) | Held: Complaint insufficient under Iqbal/Twombly; dismissal affirmed |
Key Cases Cited
- Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (§ 230 immunity and limits where site materially contributes to unlawful content)
- Levitt v. Yelp! Inc., 765 F.3d 1123 (9th Cir. 2014) (pleading standard for alleging a website authored reviews; rejected speculative fabrication claims)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (interactive service immune for decisions to publish or remove third‑party content)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (neutral tools and classification of user inputs do not make site a content developer)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (development requires more than minor editing; § 230 protects ordinary publisher functions)
- Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) (distinguishing publisher acts from responsibility for unlawful content; material contribution test)