Douglas Kimzey v. Yelp! , 836 F.3d 1263 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS L. KIMZEY, pro se, Nos. 14-35487
Plaintiff-Appellant/ 14-35494
Cross-Appellee,
D.C. No.
v. 2:13-cv-01734-RAJ
YELP! INC.,
Defendant-Appellee/
Cross-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted September 2, 2016*
Seattle, Washington
Filed September 12, 2016
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Andre M. Davis,** Circuit Judges.
Opinion by Judge McKeown
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
2 KIMZEY V. YELP!
SUMMARY***
Communications Decency Act
The panel affirmed the district court’s Fed. R. Civ. P.
12(b)(6) dismissal of Douglas Kimzey’s action alleging that
Yelp! Inc. was liable for two negative business reviews
posted on Yelp’s website.
Section 230 of the Communications Decency Act
“immunizes providers of interactive computer services
against liability arising from content created by third parties.”
Kimzey alleged that Yelp was responsible for creating and
developing content, and therefore did not enjoy immunity
under the Communications Decency Act which only grants
immunity if the computer service provider was also not an
“information content provider.”
The panel held that Yelp fell under the Communications
Decency Act’s grant of immunity, and rejected Kimzey’s
claims to the contrary. The panel held that there were no facts
plausibly suggesting that Yelp fabricated content under a
third party’s identity. The panel also rejected Kimzey’s
theory that Yelp transformed a third party review into its own
“advertisement” or “promotion.” The panel concluded that
the proliferation and dissemination of content did not equal
creation or development of content.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KIMZEY V. YELP! 3
COUNSEL
Douglas L. Kimzey, Bellevue, Washington, pro se Plaintiff-
Appellant/Cross-Appellee.
Venkat Balasubramani, Focal PLLC, Seattle, Washington;
Aaron Schur, Yelp Inc., San Francisco, California; for
Defendant-Appellee/Cross-Appellant.
OPINION
McKEOWN, Circuit Judge:
Section 230 of the Communications Decency Act
(“CDA”) “immunizes providers of interactive computer
services against liability arising from content created by third
parties.” Fair Hous. Council of San Fernando Valley v.
Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008)
(en banc) (footnote omitted) (citing 47 U.S.C. § 230(c)). This
case pushes the envelope of creative pleading in an effort to
work around § 230.
The complaint centers on two negative business reviews
posted on Yelp’s website1 about Douglas Kimzey’s locksmith
business. Instead of asserting that Yelp was liable in its well-
known capacity as the passive host of a forum for user
reviews—a claim without any hope under our precedents,
1
We have previously noted that Yelp “provides an online directory
that allows registered users to post reviews and rank businesses on a scale
of one to five stars” and, “[b]ased on these user rankings, . . . assigns
businesses an overall ‘star’ rating.” Levitt v. Yelp! Inc., 765 F.3d 1123,
1126 (9th Cir. 2014).
4 KIMZEY V. YELP!
such as Roommates.Com—Kimzey cryptically alleged that
Yelp in effect created and developed content. Kimzey claims
that Yelp is responsible for causing a review from another site
to appear on its page, providing a star-rating function that
transforms user reviews into Yelp’s own content, and
“caus[ing] [the statements] to appear” as a promotion on
Google’s search engine. This phrasing seeks to take
advantage of the fact that the CDA’s “grant of immunity
applies only if the interactive computer service provider is not
also an ‘information content provider,’ which is defined as
someone who is ‘responsible, in whole or in part, for the
creation or development of’ the offending content.” Id. at
1162 (quoting 47 U.S.C. § 230(f)(3)); see also FTC v.
Accusearch Inc., 570 F.3d 1187, 1195 (10th Cir. 2009) (“The
prototypical service qualifying for [CDA] immunity is an
online messaging board (or bulletin board) on which Internet
subscribers post comments and respond to comments posted
by others.”).
Kimzey apparently hoped to plead around the CDA to
advance the same basic argument that the statute plainly bars:
that Yelp published user-generated speech that was harmful
to Kimzey. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1105
(9th Cir. 2009) (holding that Yahoo! was immune from
liability for negligently declining to remove indecent third-
party content). We decline to open the door to such artful
skirting of the CDA’s safe harbor provision. This case is in
some sense a simple matter of a complaint that failed to
allege facts sufficient to state a claim that is plausible on its
face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But it
is also more consequential than that, given congressional
recognition that the Internet serves as a “forum for a true
diversity of . . . myriad avenues for intellectual activity” and
“ha[s] flourished . . . with a minimum of government
KIMZEY V. YELP! 5
regulation.” 47 U.S.C. § 230(a)(3)–(4). Kimzey’s effort to
circumvent the CDA’s protections through “creative”
pleading fails, and the district court did not err in granting
Yelp’s motion to dismiss.
BACKGROUND
Yelp describes its websites and mobile applications as
“provid[ing] a forum for members of the public—free of
charge—to read and write reviews about local businesses,
government services, and other entities.” Kimzey owns a
locksmith business, Redmond Locksmith (aka “Redmond
Mobile Locksmith”), that operates in the greater Seattle
metropolitan area.
In September 2011, a Yelp user identified as “Sarah K”
posted a review of Kimzey’s business on the Yelp page for
Redmond Mobile Locksmith:
THIS WAS BY FAR THE WORST
EXPERIENCE I HAVE EVER
ENCOUNTERED WITH A LOCKSMITH.
DO NOT GO THROUGH THIS COMPANY.
I had just flew [sic] back from a long business
trip with absolutely no sleep, had to drive into
work right after getting off the plane. I was so
tired that I locked my keys in the car. So
when I realized what happened I called
Redmond Mobile. The gentlemen [sic] on the
phone told me that a technician would be out
ASAP and quoted me $50 for the service,
which seemed reasonable. $35 for the service
call and $15 for the lock. The technician
called and said he’d be at my office in 30 min,
6 KIMZEY V. YELP!
an hour goes by and nothing. Call the
company back to ask about the ETA and was
greeted rudely by the person I had spoken to
earlier. He took no responsibility. After the
technician finally showed up, he was trying to
charge me $35 for the service call and $175
for the lock. I got 20% off after trying to
argue with him about being late and the
incorrect quote. Supposedly, the lock is $15
and up. Bullshit. CALL THIS BUSINESS
AT YOUR OWN RISK. I didn’t even need
new keys. I just needed my car unlocked.
Sarah K gave Redmond Mobile Locksmith a rating of one out
of five stars. Approximately one year later, in early
September 2012, a person identified as “D K. Of Redmond
Mobile Locksmith” posted a comment under Sarah K’s
review, stating, “Yelp has Posted a Fraudulent review on our
Business.” The comment included a hyperlink to essentially
the same “review posted about a fraud operation known as
‘Redmond Mobile’ (425) 318-4257,” which was not
Kimzey’s business name. Then Sarah K returned. She
posted an update to her review:
I was just informed recently by a friend that
this business has been trying to contact others
on my friends list asking about my original
review. A year ago, I had also received
similar msgs from this business and also yelp
requesting authentication of the review and
the business directly asking me to take down
the review because I must have gotten the
company incorrect. So let me clarify, I do not
work for a competitor of this business nor do
KIMZEY V. YELP! 7
I appreciate this type of harassment. I’ve
already confirmed to Yelp that indeed this
review was meant for Redmond Mobile
Locksmith and I have the receipt to prove it.
I will be issuing an official complaint to Yelp
about this now.
Yelp’s administrative records showed that Sarah K was not
associated with any internet protocol address associated with
Yelp, nor was she ever employed by Yelp.
Kimzey filed a pro se complaint in the district court
alleging that Yelp is liable for the reviews by Sarah K under
the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1964(c); the Washington Consumer
Protection Act, Wash. Rev. Code § 19.86.020; and
Washington’s libel law. Specifically, the complaint alleged
that Yelp “caused to appear a Libelous Per Se statement . . .
on . . . Google.” By “caused to appear,” Kimzey seems to
assert that Yelp found the review on another website and
posted it as a comment on its own website. Kimzey asserted
that Yelp went on to publish the statements by Sarah K as
“advertisements” or as a “promotion” on Google as part of a
“Traffic Acquisition” program. After clicking on the
“promotion,” a Google user would be “directed to Yelp.com
and then shown Yelp sponsored [sic] advertising.” At the
center of this allegedly creative process was a star rating,
which Kimzey alleged “Yelp has developed and created” by
“design[ing] the star image and creat[ing] the color.”
Kimzey also alleged that the content of at least the first
review posted by Sarah K bore the indicia of an “illegal
scheme . . . operated by the EL-AD Group, which uses
thousands of fictitious locksmith business names on the
8 KIMZEY V. YELP!
Internet in every major US city, to promote themselves.” The
connection between Yelp and this claimed scheme was not
clearly articulated in the complaint: Kimzey alleged that EL-
AD’s purported statement “transitioned to Yelp.com and was
linked to the Plaintiffs [sic] business name” where it then
“transitioned to Google.com as a Yelp promotion.”
Yelp moved to strike the complaint under Washington’s
anti-SLAPP statute, Wash. Rev. Code § 4.24.525, and to
dismiss the complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). The district court
granted the motion to dismiss, finding that § 230 of the CDA
“immunizes [Yelp] from the entirety of [Kimzey]’s lawsuit”
and that Kimzey “has not alleged non-conclusory factual
content that is plausibly suggestive of a claim entitling him to
relief.” The district court declined to rule on the anti-SLAPP
motion.2
ANALYSIS
Section 230(c)(1) of the CDA “only protects from liability
(1) a provider or user of an interactive computer service
(2) whom a plaintiff seeks to treat, under a state law cause of
action, as a publisher or speaker (3) of information provided
2
In the cross-appeal, Yelp argued that the district court erred by
failing to rule on Yelp’s motion to strike under the Washington anti-
SLAPP statute. Yelp argued that “[t]reating an anti-SLAPP motion as
moot based on a Rule 12(b)(6) dismissal frustrates [the] purpose [of the
anti-SLAPP statute], and treats the anti-SLAPP statute as a procedural
rule, rather than one creating substantive rights and defenses.” The issue
on cross-appeal is moot in light of the Washington Supreme Court’s
invalidation of the Washington anti-SLAPP statute, which occurred after
the district court’s dismissal and after the briefs on appeal were filed. See
Davis v. Cox, 351 P.3d 862 (Wash. 2015) (en banc).
KIMZEY V. YELP! 9
by another information content provider.” Barnes, 570 F.3d
at 1100–01 (footnotes omitted). Yelp is plainly a provider of
an “interactive computer service,” see 47 U.S.C. § 230(f)(2),
a term that we interpret “expansive[ly]” under the CDA,
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th
Cir. 2003). As we observed in Roommates.Com, “[t]oday, the
most common interactive computer services are websites.”
521 F.3d at 1162 n.6. There is likewise no question that
Kimzey’s claims are premised on Yelp’s publication of Sarah
K’s statements and star rating.3 In other words, the claim is
directed against Yelp in its capacity as a publisher or speaker.
See Barnes, 570 F.3d at 1102. The remaining question is
therefore whether the information was “provided by another
information content provider.” Id. at 1101.
Although the complaint is far from lucid and the opening
brief cryptic to the point of opacity, we discern two discrete
theories of Yelp’s alleged authorship. The first, and the
simplest, theory is that Yelp created the review, possibly by
copying a review previously posted on another website. This
echoes the complaint in our recent opinion in Levitt.
765 F.3d 1123. There, a group of business owners alleged
that “Yelp created negative reviews of their businesses and
manipulated review and ratings content to induce them to
purchase advertising through Yelp.” Id. at 1127.
3
Kimzey’s claims under RICO and the Washington Consumer
Protection Act, which mirror his defamation/publication claim, fall
because he failed to allege key elements, such as “racketeering activity”
and a “pattern of racketeering activity” under RICO, see 18 U.S.C.
§§ 1961, 1962(a)–(c), or the capacity to “deceive a substantial portion of
the public” under the Consumer Protection Act, see Hangman Ridge
Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 535 (Wash.
1986) (en banc).
10 KIMZEY V. YELP!
We did not reach the CDA issue in Levitt, but we
explained that for a plaintiff to “make a plausible claim that
Yelp authored [a review], it must plead facts tending to
demonstrate that the . . . review was not, as is usual, authored
by a user.” Id. at 1135. A careful reading of the complaint
reveals that Kimzey never specifically alleged that Yelp
authored or created the content of the statements posted under
the aegis of Sarah K, but rather that Yelp adopted them from
another website and transformed them into its own stylized
promotions on Yelp and Google. We have no trouble in this
case concluding that threadbare allegations of fabrication of
statements are implausible on their face and are insufficient
to avoid immunity under the CDA. See Iqbal, 556 U.S. at
678 (holding that a complaint must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face’” (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007))). Were it otherwise, CDA
immunity could be avoided simply by reciting a common line
that user-generated statements are not what they say they are.
It cannot be the case that the CDA and its purpose of
promoting the “free exchange of information and ideas over
the Internet” could be so casually eviscerated. See Carafano,
339 F.3d at 1122. This is not to say that CDA immunity
extends to content created or developed by an interactive
computer service; it does not. See Roommates.Com, 521 F.3d
at 1162–63. But the immunity in the CDA is broad enough
to require plaintiffs alleging such a theory to state the facts
plausibly suggesting the defendant fabricated content under
a third party’s identity. See Carafano, 339 F.3d at 1123.
Here there are no such facts.
The second, and more convoluted, theory is that Yelp
transformed the review by Sarah K into its own
KIMZEY V. YELP! 11
“advertisement” or “promotion” on Google and featured a
unique star-rating system as the mantlepiece of its creation.
As this case illustrates, it is not difficult to allege in a
complaint that a publisher of information engaged in creation
by transformation. Here, for instance, Kimzey alleged that
Yelp designed and created its signature star-rating system,
and thereby served as “author” of the one-star rating given by
Sarah K. Kimzey also alleged that Yelp “republishe[d]” the
statements on Google as “newly developed advertisements,”
and in that fashion became the actual author of that iteration
of the content. These characterizations have superficial
appeal, but they extend the concept of an “information
content provider” too far and would render the CDA’s
immunity provisions meaningless.
The CDA defines “information content provider” as “any
person or entity that is responsible, in whole or in part, for the
creation or development of information provided through the
Internet or any other interactive computer service.”
47 U.S.C. § 230(f)(3). The meanings of the words “creation”
and “development” are hardly self evident in the online
world, and our cases have struggled with determining their
scope. See, e.g., Roommates.Com, 521 F.3d at 1171
(clarifying the language used in Carafano because it was
“unduly broad” and recognizing that a website could be a
developer of content where it encouraged users to provide
illegal content); Carafano, 339 F.3d at 1124 (holding that a
dating site could not “be considered an ‘information content
provider’ under the [CDA] because no profile has any content
until a user actively creates it”); Batzel v. Smith, 333 F.3d
1018, 1031 (9th Cir. 2003) (concluding that “development of
information” requires “something more substantial than
merely editing portions of an e-mail and selecting material for
publication”). These cases establish that a website may lose
12 KIMZEY V. YELP!
immunity under the CDA by making a material contribution
to the creation or development of content.4
It is clear here, however, that neither of the allegedly
creative actions taken by Yelp falls within our interpretation
of the terms “creation” or “development” of information.
Even were we convinced that a one-star rating could be
understood as defamatory—a premise we do not embrace, see
Aviation Charter, Inc. v. Aviation Research Grp./US,
416 F.3d 864, 870–72 (8th Cir. 2005) (finding ratings
inactionable opinion statements), abrogated on other grounds
by Syngenta Seeds, Inc. v. Bunge N. Am., Inc., 773 F.3d 58
(8th Cir. 2014)—the rating system does “absolutely nothing
to enhance the defamatory sting of the message” beyond the
words offered by the user. Roommates.Com, 521 F.3d at
1172.
Our foundation is Carafano, where we held that the mere
fact that an interactive computer service “classifies user
characteristics . . . and collects responses to . . . questions . . .
does not transform [it] into a developer of the underlying
misinformation.” 339 F.3d at 1124 (internal quotation marks
4
Our sister circuits have generally adopted Roommates.Com’s
“material contribution” to activity test and have consistently drawn the
line at the “crucial distinction between, on the one hand, taking actions
(traditional to publishers) that are necessary to the display of unwelcome
and actionable content and, on the other hand, responsibility for what
makes the displayed content illegal or actionable.” Jones v. Dirty World
Entm’t Recordings LLC, 755 F.3d 398, 413–14 (6th Cir. 2014); see also
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
257–58 (4th Cir. 2009) (distinguishing Roommates.Com on the basis that
the content that the website solicited from users was not itself unlawful);
Accusearch, 570 F.3d at 1197–201 (denying immunity where a website
intentionally made illegal purchases of confidential consumer
information).
KIMZEY V. YELP! 13
omitted). Carafano cited Gentry v. eBay, Inc., a case from
the California Court of Appeal, in which the court examined
the eBay rating system that displayed user feedback through
both a star symbol and a color code. See 339 F.3d at 1124
(citing 121 Cal. Rptr. 2d 703 (Cal. Ct. App. 2002)). Apropos
of Yelp’s star rating, the eBay rating system was “simply a
representation of the amount of such positive information
received by other users of eBay’s web site” and was thus
protected by § 230. Gentry, 121 Cal. Rptr. at 717; see also
Levitt v. Yelp! Inc., Nos. C-10-1321 EMC, C-10-2351 EMC,
2011 WL 5079526, *7 (N.D. Cal. Oct. 26, 2011) (applying
Gentry’s logic to Yelp and concluding that “[s]ince the
aggregate rating . . . is likewise based on user-generated data,
the Court finds that aspect of Gentry persuasive”), affirmed
on other grounds by Levitt, 765 F.3d 1123.
We fail to see how Yelp’s rating system, which is based
on rating inputs from third parties and which reduces this
information into a single, aggregate metric is anything other
than user-generated data. Indeed, the star-rating system is
best characterized as the kind of “neutral tool[]” operating on
“voluntary inputs” that we determined did not amount to
content development or creation in Roommates.Com.
521 F.3d at 1172; see also Klayman v. Zuckerberg, 753 F.3d
1354, 1358 (D.C. Cir. 2014) (holding that a “website does not
create or develop content when it merely provides a neutral
means by which third parties can post information of their
own independent choosing online”).
Nor do Kimzey’s arguments that Yelp can be held liable
for “republishing” the same content as advertisements or
14 KIMZEY V. YELP!
promotions on Google survive close scrutiny.5 To the extent
Kimzey’s complaint aims at alleged downstream distribution
of the starred review, § 230’s immunity defeats the claim.
Nothing in the text of the CDA indicates that immunity turns
on how many times an interactive computer service publishes
“information provided by another information content
provider.” 47 U.S.C. § 230(c)(1). Just as Yelp is immune
from liability under the CDA for posting user-generated
content on its own website, Yelp is not liable for
disseminating the same content in essentially the same format
to a search engine, as this action does not change the origin
of the third-party content. See Ascentive, LLC v. Op. Corp.,
842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011) (“[Search engine
optimization and] use of plaintiffs’ marks to make
[defendant’s ] pages appear higher in search engine results
list . . . do not render [defendant] an information content
provider.”). Simply put, proliferation and dissemination of
content does not equal creation or development of content.
AFFIRMED.
5
It is unclear whether the republication on Google that Kimzey
alleges amounts to anything more than the passive indexing of Yelp
reviews by Google for the purpose of populating its search engine results.
If this is what Kimzey means, then the claims fail because he pled no
plausible theory of liability for Yelp stemming from Google’s actions.
Tipping to Kimzey’s favor in construing his claim, we assume that
Kimzey alleges Yelp proactively posted advertisements or promotional
links on Google.