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Section 5(A) of Yelp’s Terms of Service states:
[A user] may expose [herself] to liability, for example, Your Content contains material that is false, intentionally misleading, or defamatory . . . contains material that is unlawful, including illegal hate speech . . . violates or advocates the violation of any law or regulation.
Under Yelp’s Content Guidelines, with regard to inappropriate content, it states “[c]olorful language and imagery is fine, but there’s no need for threats, harassment, lewdness, hate speech, and other displays of bigotry.”
A terms of service agreement, also known as a Terms of Conditions agreement or a Terms of Use agreement, is a legally binding set of regulations that website users must follow in order to use your service. The agreement sets forth guidelines for acceptable behavior while using your website or app, but can also serve as a disclaimer regarding your use of website user’s data.
Terms of service agreements are incredibly important because they define the relationship between your website and your end users. Terms of service agreements also prohibit specific conduct, such as threats or hate speech. Without a terms of service agreement, these activities may be allowed. With an agreement, the website owner has a cause of action for breach of contract if these actions are undertaken.
In mid-September, New York City and surrounding cities were shocked to discover multiple explosive devices. One detonated on September 17th in Manhattan’s Chelsea-area neighborhood, injuring 29 people. The following Monday, police identified Ahmad Khan Rahami as a primary person of interest in the Saturday night explosion. Another explosion in Seaside Park in New Jersey that morning, and a failed bomb attack the following day. Police then released Rahami’s information to the public via mobile alerts.
Rahami was born in Afghanistan, but is a U.S. citizen and resident of Elizabeth, New Jersey. Rahami’s family owns a restaurant First American Fried Chicken. The restaurant, which was open 24 hours, was often the site for noisy crowds late at night. The City Council eventually ordered the restaurant to close by 10:00 p.m. after several complaints from neighbors. The family, however, ignored the ordinance and continued to serve customers late into the night. At one point, one of Rahami’s brothers allegedly assaulted a police officer at the restaurant when the officer attempted to enforce the ordinance.
In 2011, as a result of the ordinance, the family sued the mayor, City Council, and local police department. The family was claiming racial and ethnic discrimination. In response, Mayor Christian Bollwage stated that the ordinance was the result of complaints and had nothing to do with the family’s ethnic background. When Rahami’s connection to the restaurant was discovered, Yelp users spammed the restaurant’s review page with less than positive reviews. Consequently, the restaurant’s rate has dropped. Prior to September 19th, reviews of the restaurant were generally positive.
While some users were “joking” about the restaurant being a “blast,” other comments were could arguably be interpreted as threats. In accordance with Yelp’s Terms of Service and Content Guidelines, Yelp activated its “Active Cleanup Alert”. In part, the alert states:
This business recently made waves in the news, which often that people come to this page to their views on the news. While we don’t take a stand one way or the other when it comes to these news events, we do work to remove both positive and negative posts that appear to be motivated more by the news coverage itself than the reviewer’s personal consumer experience with the business. As a result, your posts to this page may be removed as part of our clean up process. . . .
After Yelp’s “clean up process,” most of the negative and false-positive comments have been removed.
If you need a Lawyer to review or draft your website’s terms of service, contact the terms of service lawyers at Revision Legal at 855-473-8474 or complete the contact form on this page.
The First American Fried Chicken incident on Yelp illustrates two important legal dynamics that business owners, users, and platform operators encounter regularly: the enforceability of platform terms of service against users, and the federal law that shields platforms from liability for what users post.
Under 47 U.S.C. § 230(c)(1), no provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider. This provision — commonly called Section 230 — is the legal foundation that allows Yelp to host millions of user-generated reviews without bearing liability for defamatory or false statements that individual users post. When Yelp removes reviews through its Active Cleanup Alert process, it is acting within its rights as a platform operator without assuming editorial liability for the content it chooses to leave up. Section 230’s immunity, however, is not unlimited. Courts have held that a platform does not enjoy Section 230 protection when it materially contributes to the unlawful nature of the content itself. See FTC v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).
Yelp’s Terms of Service constitute a binding contract between Yelp and every registered user. Courts consistently enforce click-wrap agreements — agreements where users must affirmatively check a box or click “I Agree” — as valid contracts. See Nguyen v. Barnes and Noble Inc., 763 F.3d 1171 (9th Cir. 2014). The key requirements are: the user had reasonable notice of the terms, and the user manifested assent. When a Yelp user posts a review that contains threats, false statements, or hate speech in violation of the ToS, that user has breached the contract with Yelp and may face account suspension or a lawsuit for breach of contract by Yelp itself — in addition to potential defamation liability to the business being reviewed.
Section 230 protects Yelp from liability, but it provides no protection to the individual user who posts a false or defamatory review. A business owner who is the target of a defamatory Yelp review can sue the reviewer directly for defamation. Courts have allowed businesses to subpoena Yelp for the identifying information of anonymous reviewers when a defamation claim is adequately pleaded. See Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440 (Va. 2015).
The Yelp example highlights why your own website needs a thoughtfully drafted terms of service agreement. Without enforceable terms, visitors to your platform can post false content, harvest your data, or misuse your services with no contractual basis for you to pursue them. A well-drafted terms of service agreement defines acceptable use and prohibits false or defamatory content, grants you the right to remove content and terminate accounts, includes a mandatory arbitration clause and class action waiver to limit litigation exposure, establishes limitation of liability and disclaimer of warranties provisions, addresses intellectual property ownership of user-submitted content, and specifies governing law and venue. A generic template copied from the internet provides false security. Revision Legal drafts custom terms of service agreements tailored to your specific business model and risk profile.
If you need a terms of service agreement reviewed or drafted, contact our attorneys at 855-473-8474 or through the contact form on this page.
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