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Kimzey v. Yelp! Inc.

United States Court of Appeals, Ninth Circuit

September 12, 2016

Douglas L. Kimzey, pro se, Plaintiff-Appellant/ Cross-Appellee,
v.
Yelp! Inc., Defendant-Appellee/ Cross-Appellant.

          Submitted September 2, 2016 [*] Seattle, Washington

         Appeal from the United States District Court No. 2:13-cv-01734-RAJ for the Western District of Washington Richard A. Jones, District Judge, Presiding

          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.

          Before: Michael Daly Hawkins, M. Margaret McKeown, and Andre M. Davis, [**] Circuit Judges.

         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.

          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 website[1] 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, 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 ...


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