The California Supreme Court ruled that an online publisher cannot not be forced by a court to remove a third-party post that was judicially determined to be defamatory. The 4-3 ruling by the California Supreme Court, issued July 2, 2018, overturns a lower court decision that would have required the online review website Yelp to remove a post that a trial court found to be defamatory.

Yelp was never named as a defendant in the lawsuit, which was brought in San Francisco Superior Court in 2013 by an attorney against a former client who had posted two negative reviews about the attorney’s legal services on the popular review site. The defendant in the lawsuit, Hassell v. Bird, never appeared in the action, and default judgment was subsequently entered finding the defendant’s reviews libelous. The trial court not only ordered the defendant to remove the reviews from Yelp, but also ordered Yelp to remove the reviews even though it was not a party to the lawsuit. Yelp argued on appeal that it was protected by Section 230 of the federal Communications Decency Act for liability in connection with the two reviews. Section 230 has been a powerful shield for websites that host third-party content, as it provides immunity from liability stemming from content-related causes of action, such as defamation, that may arise from third-party posts such as the reviews at issue in this case. The Court of Appeal rejected Yelp’s arguments, and the Supreme Court reversed.

Supreme Court Chief Justice Tani Cantil-Sakauye, writing for herself and two other justices, found Yelp’s Section 230 argument persuasive. The Chief Justice characterized the plaintiff’s failure to name Yelp as a defendant in the action as a tactical move that sought an “end-run around section 230.” The plaintiff argued that Section 230 protection was only available where a “cause of action” has been alleged against a defendant in a pending action -- an argument the court rejected. Rather, the court read the statute broadly as conveying Congress’s “intent to shield Internet intermediaries from the burdens associated with defending against state-law claims that treat them as the publisher or speaker of third party content, and from compelled compliance with demands for relief that, when viewed in the context of a plaintiff’s allegations, similarly assign them the legal role and responsibilities of a publisher qua publisher.” Chief Justice Cantil-Sakauye noted “it is clear that plaintiffs’ legal remedies lie solely against Bird, and cannot extend -- even through an injunction -- to Yelp.”

In her concurrence, Justice Leondra Kruger said the court did not have to reach the merits of Yelp’s Section 230 argument since “Yelp is not a party to this litigation, and the courts’ power to order people to do (or refrain from doing) things is generally limited to the parties in the case. … Before Yelp can be compelled to remove content from its website, the company is entitled to its own day in court.” Had Yelp been named as a defendant in the action, it likely would have successfully invoked Section 230 as a defense.

This decision reinforces Section 230’s powerful role in protecting interactive computer services -- which include everything from search engines to online newspapers to review websites -- from liability for content posted to those websites by third parties. Congress recognized the difficulty that those who provide internet services would have in monitoring every post from users of those services for material that may, for example, be defamatory. Although many courts over the years have found the protections of Section 230 to be fairly strong, there have been recent decisions that have undercut those protections.