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Lawyer loses appeal against Yelp

A Northern Virginia lawyer’s defamation claim against Yelp is barred by the Communications Decency Act of 1996, a federal appeals court said on March 18. The consumer review website’s automated filtering system does not render it “an information content provider” who could be sued, the appellate court said.

Thomas K. Plofchan’s law firm sued Yelp and a former client, Christopher Schumacher, who posted complaints on the Yelp website about the firm’s handling of Schumacher’s divorce.

Due to an error in the service of process, Yelp did not receive notice of the suit and the firm won a default judgment in its initial suit filed in state court. When the firm tried to collect on the judgment, Yelp moved to set aside the default and removed the case to federal court.

An Alexandria federal judge set aside the judgment and dismissed the law firm’s claim against Yelp as time-barred and barred by § 230 of the CDA. In an unpublished opinion, the 4th U.S. Circuit Court of Appeals upheld that judgment in Westlake Legal Group v. Yelp Inc.

The CDA bars state law plaintiffs from holding interactive computer service providers legally responsible for information created by third parties, the panel said, and courts have generally accorded a broad scope to CDA statutory immunity.

Dismissal of a case on this basis is appropriate unless the complaint plausibly asserts that any alleged drafting or revision by the defendant was something more than a website operator performs as part of its traditional editorial function, “thereby rendering it an information content provider,” the panel said.

Plofchan’s complaint and attached exhibits indicated, “at most, that Yelp has an automated system that filters reviews. Such activities constitute traditional editorial functions that do not render Yelp an information content provider,” the per curiam opinion said.

Because appellants’ claims against Yelp are barred by the DCA, the panel did not reach the question of whether Yelp’s updates to its website constituted republication for purposes of Virginia’s statute of limitations.

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