Online client and customer reviews exercise an increasingly substantial influence in the marketplace, even for professional and legal services.  Lawyers have both invested resources in building a social media presence and struggled to effectively counteract negative online reviews.  Some have landed in hot water for revealing confidential client information in responding online to negative reviews.  See, e.g., In re Mahoney, Bar Docket No. 2015-D141 (D.C. Office. of Disc. Counsel, June 9, 2016).   In one recent case, Hassell v. Bird, No. CGC-13-530525 (Cal. Sup. Ct. 2013), a California attorney went so far as to sue a former client for defamatory Yelp reviews after the termination of the representation.

Dawn Hassell and the Hassell Law Group represented Ava Bird in a personal injury case in 2012.  Shortly after the representation began, Hassell withdrew, after which Bird posted numerous negative and false reviews on about Hassell and her law firm.  Hassell requested that Bird take down the reviews.  Bird refused, and threatened to post more negative reviews and to cause others to do the same.  In response, Hassell filed suit against Bird for defamation.  After Bird failed to appear in the case before the California Superior Court for San Francisco County, a default judgment was entered against her in the amount of $557,918.75 and the court issued an injunction ordering her to take down the defamatory reviews.  More remarkably, the court separately ordered Yelp, not a party to the litigation, to remove the defamatory review.

            Bird was a judgment-proof defendant and ignored the injunction.  Rather than pursue sanctions against Bird for noncompliance, Hassell sought to compel Yelp’s compliance with the order.  Yelp refused and moved to vacate the judgment.  The court denied Yelp’s motion to vacate, and Yelp appealed from that decision, arguing that 1) it could not be bound by an injunction resulting from a proceeding to which it was not a party, 2) the court’s ex parte order to remove content violates Yelp’s First Amendment free speech rights, and 3) it is immunized from liability (including for civil contempt) as a third-party “interactive computer service” provider under Section 230 of the Communications Decency Act (CDA).  See Hassell v. Bird, 247 Cal. App. 4th 1336 (2016).  California’s First District Court of Appeal upheld the order requiring Yelp to remove the reviews, remanding to the trial court only for determination of the scope of the order (to ensure that it did not constitute an unconstitutional prior restraint as to speech that Bird may make in the future).  Yelp has filed a petition for review to the California Supreme Court, contending that website publishers are entitled to notice and hearing before they can be ordered to remove content, and that Section 230 of the CDA bars injunctions against website publishers related to third-party content.   

            The issue of whether an injunctive order can bind a non-party not appearing in the case is a salient one.  The court held that such an injunction was valid under California law because the injunction extended to Yelp as a person “through whom the enjoined person [Bird] may act.”  Based on this finding of a close connection between Yelp and Bird, the court held that Yelp could be ordered to effectuate the injunction against Bird.  The Hassell court did not discuss federal precedent regarding the requirements of the Due Process clause.  On appeal to the Supreme Court of California, Yelp raises this question, arguing that it is not one through whom Bird may act and that it cannot be required to comply with an order arising from a proceeding to which it was not a party.

            Before the Court of Appeals Yelp raised its First Amendment right “to distribute the speech of others,” arguing that absent notice and an opportunity to be heard, it could not be enjoined from distributing a user-generated post.  The court found that Yelp had no such First Amendment interest because “the removal order does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.”  Further, the court held that the speech, having been validly found to be defamatory, is unprotected speech.  Yelp also argued before the Court of Appeals that the order is deficient because it is based on a default judgment where the falsity of the speech and culpability of the defendant were not litigated in an adversarial process.  The court denied Yelp standing to litigate the merits of the case, holding that the entry of a default judgment is sufficient to support the order.  Yelp now raises this question on appeal to the Supreme Court of California, arguing that as an initial matter it has a protectable speech interest in its users’ reviews and that to the extent that this right is compromised based on a finding that such speech is defamatory, it must be afforded notice and opportunity to be heard on the merits.

The question of whether Section 230 of the Communications Decency Act (CDA) immunizes Yelp from civil contempt liability is one that has captured the attention of in-house counsel across the digital media sector.  Josh King, general counsel for, for example, has taken issue with the decision, telling Corporate Counsel: “If a forum site is going to be liable for third-party content, whether ‘ordinary’ liability or contempt liability for ignoring a court's order, that's the sort of thing that Section 230 is supposed to immunize against.”

            Section 230(c)(1) of the CDA provides that “no 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.”  Section 230(e)(3) further provides that “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”  Courts have construed this to broadly immunize those, like Yelp, who provide an online platform for individual users to post their own content.  Many in the online review and social media space view this immunity as vital to their role as stewards of an open Internet.  Without it, the likes of Yelp, Facebook, Twitter, and Airbnb could be forced to expend substantial resources reviewing and monitoring speech on their platforms so as to avoid facing crippling legal expenses and damages.  In effect, the open Internet as we know it could very well be muzzled.

            The Hassell decision does not ignore or eviscerate the CDA’s grant of immunity.  But it does substantially diminish its scope.  While the Hassell court held that the CDA immunizes Yelp from liability for the defamatory speech of its users, under its reading of Section 230, the grant of immunity does not extend to immunity from civil contempt liability.  As a result, it held that Yelp would be properly subject to civil contempt liability for failing to comply with the court’s order even though that injunction resulted from the speech of a Yelp user.  Whether Section 230 permits the imposition of civil contempt liability as to otherwise immunized providers of open web platforms is a novel question of law. 

But the reach of Section 230 grant of immunity has been in the spotlight in recent months.  In March the First Circuit decided Doe v., LLC, the most recent high-profile decision relying on CDA Section 230 to hold that a website operator was immune from liability arising from content posted by its users.  817 F.3d 12 (1st Cir. 2016).  There the court held that could not be held liable to three plaintiffs who, as minors, had been victims of sex trafficking and who sued for advertisements posted on their site advertising the minors as escorts (under the site’s “escorts” section). was covered by Section 230 despite the fact that it had intentionally moved into the space after Craigslist had cracked down on such advertisements on its site. had an Adult Entertainment Section containing an Escorts sub-section for these types of advertisements.  It also removed certain ads, including those that were posted as part of sting efforts to apprehend those responsible.  Despite this, the First Circuit, reluctantly, held that Section 230 immunizes from liability for the user-generated posts.

In response to the holding, the Senate opened an investigation regarding how to amend the CDA to combat online sex trafficking, and served subpoenas seeking information from’s CEO Carl Ferrer.  In late March, when Ferrer failed to respond, the Senate Permanent Subcommittee on Investigations sought to have him held in contempt.  Senate Permanent Subcommittee on Investigations v. Carl Ferrer, Misc. No. 1:16-MC-00621-RMC (D.D.C. March 31, 2016).  On July 19, 2016, the parties completed briefing on the issue for the district court’s decision.

The Hassell court did not discuss the controversy in its decision.  But its decision, if upheld, could provide additional precedent for those seeking to narrow the construction of Section 230.  If the Hassell holding stands, it could provide more complete relief to victims of defamatory and otherwise harmful online speech.  It would also impose a greater burden on providers of online speech platforms.  For that reason, interested industry amici may join Yelp in seeking review and reversal of the Hassell court’s decision.