On June 7, 2016, the California Court of Appeals, First District, ordered Yelp to take down a defamatory review about a lawyer left by a former disgruntled client after the lawyer obtained a judgment against her former client declaring the review defamatory. The case is significant and represents a departure from current legal precedent because Yelp was never a party to the lawsuit, and typically most courts would have found the judgment unenforceable. The ruling marks yet another blow in recent cases that have begun to chip away at the protections provided to websites like Yelp by Section 230 of the Communications Decency Act (CDA).
Dawn Hassell is the managing attorney of the Hassell Law Group, a California based personal injury firm. Hassell and her firm represented Ava Bird during the summer of 2012. Shortly thereafter, Hassell withdrew from representation, which resulted in Bird posting numerous negative and allegedly false reviews about Hassell and her law firm on Yelp. In April 2013, after months of back-and-forth between the parties, Hassell filed a defamation-based lawsuit against Bird.
Bird, however, never showed up to defend the case, which resulted in a default judgment and a win for Hassell. As part of the default judgment, the court awarded Hassell $557,918.75 in monetary damages, as well as an injunction against Bird ordering her to remove all defamatory online reviews about Hassell and her firm from Yelp.
The Court, as part of the judgment, did something else that was relatively surprising—it directly ordered Yelp, a non-party to the case, to remove the defamatory content as well.
After the judgment was issued, Hassell tried to get Bird to comply with the judgment and remove the review. Bird, however, refused to comply. Rather than attempt to pursue sanctions against her former client for not complying with the judgment, Hassell contacted Yelp directly and requested that they comply with the court order. Yelp objected.
The judgment became final on March 16, 2014. On May 23, 2014, Yelp moved to set aside and vacate the judgment. This motion was denied, and Yelp appealed.
On appeal, the First District Court, ruled in favor of Hassell, amending the ruling of the trial court slightly to limit the scope of what language and content Yelp needed to remove.
For businesses owners that hate Yelp and the seemingly disproportionate power the platform can have over a business’s success, the ruling is a clear win and cause to celebrate. If defamatory content is located on Yelp and a court order is obtained requiring the defamatory content be removed, according this ruling, it should come down.
And to be clear, to the average business owner, as well as most people in society, this makes complete sense. Why wouldn’t a website be compelled to remove something if a court ordered that it was defamatory and should be removed? It would seem ludicrous that the opposite would be true.
However, in the world of Internet defamation, and because of a federal law called the Communications Decency Action, this usually isn’t the case for numerous reasons.
Under Section 230 of the CDA, consumer review websites are typically immune from liability for a third-party post. Section 230(c)(1) of the CDA states that, “No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.” This means that normally, and in most court ruling to date, Yelp can’t (or wouldn’t) be liable for, or otherwise forced to remove the content posted by its users. In this case, however, the court disagreed.
Other aspects of the ruling were also significant. For example, from a procedural standpoint, the fact that Yelp was directly ordered by the trial court to do anything at all was highly unusual; this is because Yelp was never a party to the original lawsuit. The litigation was between Hassell and Bird. Yelp was a third party. It was essentially a bystander to the case. Usually, it’s not proper to, and Courts can’t/don’t, issue orders that compel action by parties not directly involved in the litigation. Courts typically only have power over the direct parties to the case.
Honestly, I don’t know where the trial court in this case found the power to issue the order that it did against Yelp. From what I understand, it was permissible because of procedural rules that are likely unique to the state of California. I would encourage those who want to know more to read this blog article about the case by Professor Eric Goldman, who goes into more detail about this this aspect of the ruling.
Nuanced California procedural rules aside, it does seem strange that the Appellate court found there was nothing wrong with a court order being issued that effects the rights of a third party which had no opportunity to be heard (and was in fact denied the opportunity to be heard from the court) beforehand. This seems like an obvious due process concern.
Yelp has yet to actually remove the defamatory reviews. The company, along with in-house counsel from other review websites, recently slammed the decision publicly and expressed their intent to appeal it.
Nonetheless, in the short term at least, this decision bodes well for those seeking to enforce a court order against defiant defendants, including non-party websites. It provides new ammunition for parties seeking to compel the removal of defamatory content from websites that refuse to comply with valid court orders.
Regardless, prospective Internet defamation plaintiffs should think twice before reacting too strongly, as this may be nothing more than a fluke opinion that is eventually overturned. If I had to guess, it probably will be. The decision seems like an outlier in multiple respects.
If the ruling does stand though, it would have a significant and favorable impact on Plaintiffs who are victims of Internet defamation, especially in California. Although many companies have policies where they voluntarily remove defamatory content if they receive a court order, others do not, and refuse such removals (like RipoffReport.com). This case is a clear road map establishing precedent as to how a website could be forced to remove content in these situations involuntarily.
Just because this case opens new doors doesn’t mean that this is the most appropriate course of action for a Plaintiff to take in any given case. For example, seeking a judgment like this against a litigious company like Yelp or Ripoff Report may not be a good idea. It may cause these companies to attempt to interfere with the case, appeal certain decisions, and drive up litigation costs significantly. It may, in more ways than one, cause a Streisand Effect in circumstances where the goal of the litigation is to draw as little attention to the matter as possible.
Further, as stated above, most companies have policies that they will voluntarily remove content in these situations anyways. If someone were to take the additional step of ordering the company to comply, it’s possible that they may take offense to the mandate and do the opposite.
Only time will tell exactly what impact Hassell v. Bird will have on the landscape of Internet defamation law.
For more information or questions, or if you are a victim of online defamation looking to remove content from the Internet, contact Aaron Minc, an attorney at the law firm of Meyers Roman Friedberg & Lewis, LPA at 216-373-7706 or email@example.com.