Last week, the California Supreme Court ruled that Yelp, Inc. cannot be compelled by a court to remove defamatory third-party user reviews that had been posted to its site. Hassell v. Bird, 2018 WL 3213933 (Cal. Sup. Ct. July 2, 2018). In a closely-watched 4-3 decision, the Court reversed the California Court of Appeal, opining that Section 230 of the Communications Decency Act of 1996 (CDA) (47 U.S.C. § 230 (Section 230)) barred enforcement of the trial court’s order requiring Yelp to remove defamatory content posted by Bird, a user of its site. Hassell is the latest in a long line of decisions precluding courts from “entertaining claims that would place a computer service provider in a publisher's role.” See, e.g., Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).
The CDA protects interactive computer service providers, such as Yelp, from liability arising out of the speech of their users, including for content that may be defamatory. Section 230 defines interactive computer service providers as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” (47 U.S.C. § 230). This covers a wide variety of online platforms, including review sites such as Yelp and other social media sites. As discussed below, the Hassell Court reasoned that the CDA barred the trial court order because forcing Yelp to remove even defamatory content “could interfere with and undermine the viability of an online platform”. Hassell, at 13.
Lawyer Dawn Hassell, of Hassell Law Group, sued her former client Ava Bird for defamation. For example, Bird had given Hassell a one-star review on Yelp, complaining Hassell was incompetent and had wrongly withdrawn from her personal injury matter. Once Hassell filed the defamation suit against Bird, Bird again posted on Yelp, this time saying she was being threatened into deleting her review. Hassell also contacted Yelp directly in an attempt to get Yelp to remove Bird’s comments, but Yelp was unresponsive. Notably, Hassell did not sue Yelp. She only sued Bird.
Bird defaulted at trial, resulting in a judgment of defamation. The trial judge then issued an order purporting not only to bind Bird, but also to bind any third-party publishers of Bird’s defamatory statements. That necessarily included Yelp, which had not been a party to the trial, nor notified of the proceeding. The court’s order also purported to enjoin Yelp from publishing any future reviews from Bird’s accounts.
After it learned of the court’s order, Yelp filed a motion to set aside the judgment on several grounds, including that it was immune from liability under Section 230. The trial court denied the motion and then Yelp took appeal to the California Court of Appeal, where it lost. Both lower courts held that Yelp was not entitled to Section 230 immunity because the order had been rendered against Bird, and that Yelp was bound solely as a third party through whom the originator of the defamatory speech (Bird) was acting.
Yelp then sought and was granted review by the California Supreme Court in part to resolve the question of whether the CDA immunity that ordinarily extends to claims for injunctive relief that are alleged directly against an interactive service provider in a tort action also apply with equal force to an injunction that binds a nonparty.
Immunity under the CDA Extends to Implicated Website Owners Even When the Website is Not a Named Party
Section 230 of the CDA provides federal immunity from liability for content produced by a third-party user of the service. (47 U.S.C. § 230). The purpose of the CDA is to shield internet service providers such as Yelp from legal responsibility for publishing its users’ speech online. This is felt to promote an open internet, and to protect the rights of internet service providers from the likely immense task of responding to demands to alter their display of users’ unfettered ideas and opinions.
This can be a double-edged sword. For platforms such as Yelp, the task of monitoring user content and responding to demands to remove defamatory or otherwise unlawful third-party content could easily become so onerous as to be infeasible. On the other hand, for any company or person aggrieved by allegedly unlawful postings, it can be hugely difficult to get an unresponsive platform to remove even obviously wrongful content.
Hassell’s strategic gambit was to avoid what she obviously knew would be an outright dismissal had she chosen to sue Yelp directly. Instead, she did not name Yelp as a defendant and proceeded against Bird, apparently on the assumption that any judgment and associated injunction against Bird could later be enforced against Yelp. The California Supreme Court held that this procedural posture should not be the deciding factor in whether the platform receives CDA immunity. It reasoned that, to allow such a loophole would undermine the purpose of the CDA. The Court wrote, “…we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no.” Hassell v. Bird, 2018 WL 3213933 (Cal. Sup. Ct. July 2, 2018).
Advocates of an open internet will tout the decision in Hassell as a win for not only websites like Yelp, but also for internet users more broadly. However, unanswered questions remain, including whether the result would be different where an online platform was the only party technically or practically capable of removing defamatory content subject to a court order. Similarly, website operators are not immune from their own actions and speech, or their own contributions to defamatory speech. Thus, the circumstances under which an online platform is actively involved enough in a user’s violation of a court order to subject the platform to aiding and abetting liability are not wholly defined by the decision. How those lines are drawn will continue to be refined on the facts of individual cases. Nonetheless, the dozen amicus briefs filed in the case signal its importance and the ruling emphasizes the continued impact of the CDA.