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By: Frank Olah
On July 2, 2018, in Hassell v. Bird (2018) 5 Cal.5th 522, the California Supreme Court held that Section 230 of the Communications Decency Act of 1996 prohibits courts from ordering Yelp to remove defamatory consumer reviews posted by an attorney’s former client.
Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Moreover, “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” (Section 230(e)(3).)
The Hassell court held that Section 230’s broad immunity protects “interactive computer services” such as Yelp from defamation liability even in circumstances where Yelp was not itself sued for defamation. The court reasoned that a defamed plaintiff should not be able to avoid the immunity protections of Section 230 by intentionally not naming Yelp as a defendant. Instead, some defamed plaintiffs tried to circumvent Section 230’s immunity by enforcing a judgment against the defamer defendant, and then using the judgment and injunction to remove the defamatory Yelp posts. Such a strategic end-run around Section 230 is not permitted.
In June 2012, Ava Bird hired attorney Dawn Hassell to prosecute a personal injury lawsuit. After a few months, Hassell concluded Bird was unhappy and withdrew. Bird posted negative reviews on Yelp about Hassell’s lawyering skills. Hassell asked Bird to remove them; Bird declined. Hassell proceeded to sue only Bird for libel.
After a default prove-up hearing, the trial court entered judgment for Hassell for $557,919 in damages, apparently caused by three one-star Yelp reviews. The trial court also ordered both Bird and Yelp to remove the three defamatory reviews. Upon being served with the court’s order, Yelp moved to set aside and vacate the default judgment. The trial court denied the motion. The Court of Appeal affirmed. It found the removal order did not did not impose any “liability” on Yelp, as that term is used in Section 230(e)(3), since the default judgment and damages were against Bird and not Yelp.
The California Supreme Court reversed. It observed that the “immunity provisions within section 230 have been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source.” (Id. at 535.) It found that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” The Court found that Section 230 confers “blanket immunity from tort liability for online republication of third party content.” The Court reasoned that subjecting companies like Yelp to defamation liability for the republication of online content would tend to chill online speech. This chilling effect could materialize in the high costs for companies like Yelp of having to investigate potentially defamatory postings.
The Court found that Yelp was being held to account for nothing more than its ongoing decision to publish the challenged reviews. The Court concluded that Hassell’s legal remedies lay solely against Bird, and could not extend to Yelp. Notably, the Court ruled that Hassell had powerful remedies available to her, i.e. “the judgment requires Bird to undertake, at a minimum, reasonable efforts to secure the removal of her posts. A failure to comply with a lawful court order is a form of civil contempt… the consequences of which can include imprisonment.”
On October 18, 2018, Hassell filed a petition for writ of certiorari urging the United States Supreme Court to review the decision, which she argue renders California courts powerless to compel companies like Yelp to remove clearly unlawful content. Apparently, Hassell is not convinced that pursuing a contempt order against Bird and demanding that her former client be thrown in jail will improve her Yelp rating.
One criticism of the Hassell Court’s reasoning is its naïve willingness to adopt the fiction that Yelp is just a folksy old-fashioned newspaper publisher exercising a publisher’s traditional editorial functions. The reality is that Yelp applies its own judgment to award star ratings to businesses. In this case, Hassell claimed that the manner in which Yelp utilized Bird’s reviews caused its rating to drop to 4.5 stars. The trial court had observed that Yelp featured one of Bird’s defamatory reviews as a “Recommended Review” and that Yelp had not factored many positive reviews into Hassell’s overall rating. That is to say, Yelp promoted Bird’s negative reviews and gave them greater weight than many more positive reviews causing Hassell’s star-rating to drop. And the lower Yelp star-rating caused Hassell to lose business.
Perhaps the U.S. Supreme Court will not want to parse the issue so finely. But Congress may wish to consider whether it makes sense to update Section 230 to allow a company like Yelp to be compelled to remove postings that the original poster was ordered to remove.
If you have any questions or would like more information, please contact Frank Olah at [email protected].