Disgruntled Online Reviews of Attorney by Disgruntled Former Client Ordered Removed from Yelp.com

The Court of Appeal of the State of California – First Appellate District in Hassell v. Bird (6/7/16 – Case No. A143233) affirmed an order from a judgment in favor of an attorney and her firm and against a disgruntled former client directing non-party Yelp.com to remove defamatory reviews posted to its site.

Attorney Dawn Hassell (“Hassell”) filed suit against Ava Bird (“Bird”) arising out of Hassell’s brief legal representation. The attorney/client relationship lasted a total of 25 days after which Hassell withdrew from the representation because of difficulties communicating with Bird and Bird expressed dissatisfaction with Hassell. When legal representation terminated, Bird had 21 months before the expiration of the statute of limitations on her personal injury claim.

Bird then published a negative review on Yelp about her experience with Hassell. Hassell requested that Bird remove factually inaccurate statements from the review. In response, Bird both refused to remove the review and threatened to post an updated review and have another review posted by someone else. The following month Bird or someone at her direction created a false Yelp identity and posted another negative review about Hassell.

Hassell filed suit against Bird alleging causes of action for defamation, trade libel, false light invasion of privacy and intentional infliction of emotional distress. Hassell also requested injunctive relief to prohibit Bird from continuing to defame Hassell and requiring Bird to remove each and every defamatory review published about Hassell from Yelp or any other site. After being served with Hassell’s lawsuit, Bird posted a third negative review about Hassell on Yelp. Bird failed to answer Hassell’s complaint and default was entered against her. Bird did not appear at the default “prove-up” hearing and the court entered judgment against her, awarding Hassell more than $500,000 in damages. The court also granted injunctive relief ordering Bird to remove each and every defamatory review, enjoining Bird from posting any further defamatory reviews on Yelp or any other site, and ordering Yelp to remove all reviews posted by Bird, including any subsequent comments by her. Hassell served Bird with a notice of entry of judgment. Bird did not appeal and the judgment became final.

Thereafter, when served with the court’s order, Yelp objected stating it was not a party to the litigation and arguing that Hassell had failed to prove the reviews were defamatory. Yelp filed a motion to set aside and vacate the Bird judgment and alleged it had standing to bring the motion because, although not a party to the action, it was an “aggrieved party” to the judgment. Following a hearing on the motion, the court denied Yelp’s motion and found that “Yelp [was] aiding and abetting the ongoing violation of the injunction and that Yelp has demonstrated a unity of interest with Bird.” Yelp appealed.

The Appellate Court concluded Yelp was not aggrieved by the default judgment against Bird but was aggrieved by the removal order and thus had standing to appeal. On appeal, Yelp argued the removal order was an injunction against Yelp and that the trial court was without authority to issue the removal order because it constituted a prior restraint of speech. The Appellate Court, however, ruled the removal order did not impose any restraint on Yelp’s autonomy and found the order to remove the three specific statements at issue was valid. The Appellate Court found, however, that the language of the order instructing Yelp to remove subsequent comments that Bird or anyone else might post in the future was an overbroad prior restraint on speech. Accordingly, the Appellate Court affirmed the order denying Yelp’s motion to vacate the judgment, but remanded the case to the trial court with directions to narrow the terms of the removal order by limiting it to the specific defamatory statements listed on the judgment.

The Hassell opinion provides an interesting discussion on the relationship between the now commonplace online review websites and free speech. With the advent of such sites, individuals are easily able to post untrue or defamatory statements about any business or professional with little or no oversight or restraint. Such postings can have grave consequences for professionals who may suffer monetary and reputational injuries as a result. This is especially true when the websites are unwilling to comply with court orders to remove defamatory portions of reviews merely by asserting the First Amendment. The case may provide a more reasoned basis for resolution of such matters in the future.

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June 22, 2016