In our Alerts dated June 22, 2016 and September 22, 2016, we followed the case of Hassell v. Bird where a lower court, in a matter involving a defamation action brought by a law firm (“Hassell”) against a disgruntled former client (“Bird”), ordered the website Yelp.com (“Yelp”) to remove defamatory “reviews” about Hassell which had been posted by or on behalf of Bird after Hassell obtained a default judgment against Bird. On September 21, 2016, the California Supreme Court agreed to hear the matter and on July 2, 2018 issued its ruling that a court cannot order an “internet intermediary” or online publisher such as Yelp to remove third-party reviews and comments because it is afforded statutory immunity from liability under Section 230 of the Communications Decency Act of 1996 (“Act”), 47 U.S.C. §230.
The Act states no provider of an interactive computer service will be treated as the publisher or speaker of any information provided by another information content provider. In Hassell v. Bird, Yelp was not a party to the lawsuit but rather only learned of the action when served with a court order to remove the defamatory reviews posted by Bird on the site which had been issued pursuant to a default judgment Hassell had obtained against Bird when she failed to appear in the action. Yelp appealed the order arguing it was immune under the Act from tort liability for reviews and other content posted by third-party users on its site; it also asserted that it had no notice of the proceedings and thus its due process rights had been violated. There were a considerable number of amicus curiae including Google, Trip Advisor, Airbnb, craigslist, Facebook, Snap, Twitter, the ACLU, numerous media outlets, and several law schools’ clinical programs.
In its analysis, the Court acknowledged the Act has been construed broadly in several prior cases to immunize computer services’ providers from tort liability for third party speech. The Act, as written, seeks to bar lawsuits intending to hold service providers liable for the exercise of a publisher’s traditional editorial functions such as determining whether and how to publish or edit content.
The Court emphasized Congress’ goal in enacting the Act – i.e. to promote the free exchange of information over the internet and to encourage voluntary monitoring of offensive or obscene material. Since its enactment the plain language of the Act has been widely and consistently interpreted to confer broad immunity against defamation liability for publishers of third-party source information on the internet. The Act has also been held to provide immunity for claims for injunctive relief. The Court also noted the sheer number of postings would create an impossible burden on internet review sites such as Yelp. Of additional concern is that a number of posts on sites such as Yelp are made by anonymous users or by fake accounts, the creators of which are impossible to identify.
The Court also found of utmost importance that the Hassell plaintiffs made a tactical decision not to name Yelp as a defendant in their lawsuit. Had Yelp been named, it could have and would have been granted immunity under the Act. Accordingly, the Court determined the Hassell plaintiffs could not employ a litigation strategy to indirectly achieve a result that Congress expressly prohibited directly. Where a site’s conduct in a defamation case goes no further than mere publication, including a refusal to remove the content on demand, the Act prohibits a removal order such as the one issued by the lower court. Such orders place substantial burdens on internet platforms where they may not be easy to implement and where compliance could interfere with the viability and credibility of the site. Further, such orders would generate even more litigation regarding their validity and scope which Congress, recognizing the unique position of such internet publishers, intended to limit by enacting the Act in the first place.
Based on that reasoning, and recognizing that permitting the lower court order to stand would lead the way to further litigation tactics and other improprieties intended to end-run the statutory scheme, the Court remanded the matter to the lower court for a revised order in compliance with Section 230 of the Act – essentially requiring the trial court to rescind its removal order. It should be noted, however, that the Court was significantly split with Chief Justice Cantil-Sakauye joined by Justice Chin and Justice Corrigan issuing the plurality opinion, Justice Kruger concurring, and Justices Liu, Cuéllar, and Stewart dissenting. It is also of note that the Court’s opinion focused on the narrow issue of the application of the Act and did not address any First Amendment or due process issues. Rather, the Court found that “[b]ecause the statutory argument is dispositive, there is no need to address the due process question.”
The decision was hailed by many in the online community as helping to “save” freedom of speech on the internet. However, given the rapid growth of third-party review sites such as Yelp and the free reign the internet allows individuals to provide their thoughts and comments on law firms, restaurants, and other businesses, and to do so anonymously, it may be sooner rather than later that a court will have to dive into the due process issues. In this way the Hassell case may very well be the canary in the coal mine and a sign of things to come.
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