Today, Yelp appears to have removed almost 1,000 reviews of the Union Street Guest House, many of which were negative and stemmed from the controversy that was the subject of my post this morning. As of about 4:15PM ET, the hotel’s average Yelp review was up to 2.5 stars, from 1.5, and there were 15 total reviews, down from almost 1,000 as recently as yesterday.
I can’t say I like this outcome. Much like the original dispute between consumers and the Union Street Guest House, any grievance over Yelp’s decision is likely to sound in contract law. While I argued that that body of law would probably produce a “pro-consumer” result (by prohibiting USGH from enforcing its policy), I think in any dispute over Yelp’s decision contract law would not be of much help to consumers.
Review controversies are a flashpoint for Yelp. Both the company and individual Yelpers have been sued repeatedly over reviews, often by business owners annoyed by what they regard as unfairly negative or even defamatory reviews (or alternatively, for fluffy Yelping by the friends and family of competitors). A few weeks ago, a businessman-plaintiff notched some progress against Yelp in a California appeals court.
Some of this litigation turns on fine distinctions that only matter to those who follow this stuff – for example, the California lawsuit alleges that the company misrepresented the accuracy and efficacy of its review filter, not that it improperly filtered reviews in the first place – but to the average consumer or business, that will seem like hair-splitting. The key question for most people is the scope of Yelp’s discretion in deleting or promoting reviews.
Yelp’s discretion is vast, by design. The company is publicly held and, as one would expect, it appears to use seasoned lawyers to draft important disclosures and agreements.
Yelp’s Terms of Service are characteristically broad for a social media company. They tell users that “you hereby irrevocably grant us . . . rights to use Your Content for any purpose” (emphasis mine). Just to make the definition of “use” completely clear, they specify that “[b]y ‘use’ we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content” (emphasis mine). In other words, the right “to use . . . Your Content” includes the right “to remove” your reviews, or for that matter do just about anything else they want to with them. Well then.
It’s possible these terms could be held to be unenforceably vague or unconscionably broad in some instances, but I doubt that would happen here. (If Yelp sought to “use” your profile picture to market pornography, you might have a case.) So if a private citizen or regulator complains about Yelp deleting Union Street Guest House reviews, you can expect the company to cite these terms while gesturing in the direction of higher principles, like improving accuracy by working to ensure that its reviews are written only by actual customers. If you were to note that many reviews of actual customers appear to have been deleted as well – which I strongly suspect has happened in this case, given that (as sorting by date reveals instantly) Yelp has removed all reviews posted between April 3, 2014 and August 5, 2014, inclusive – they would surely lean on their prerogative, under the ToS, to delete any of Your Content. This is before considering the effect of any statutory privileges that may protect Yelp.
Abstracting back from Yelp’s rights to first principles, it seems sensible, on one hand, for a company to limit reviews to actual customers (if that’s what Yelp is trying to do); one can see why Yelp wouldn’t want a ton of random people with no connection to a place commenting on it. Cf. hearsay. On the other hand, it’s a shame that reviews that discuss an official policy of the establishment aren’t allowed unless someone has patronized it. And what does “patronize” mean, anyway? Buy something? Stay the night? Surely a review site would want to let someone who walked in, or called, and was denied service because of his appearance or accent say as much in a review. How to answer these questions is up to Yelp. Whatever their internal policies, I suspect they have to make a lot of judgment calls. In the end, a contract-based analysis is unlikely to do a lot of “pro-consumer” work here.
But not all is lost. If you patronized Union Street Guest House and wrote one of those now-deleted reviews, you can feel a sense of pride in “Your Content” being nobly sacrificed in the war against petty tyranny.