Courts can't order Yelp to take down negative review of law firm, California Supreme Court rules
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The California Supreme Court has ruled that Yelp can’t be required to remove negative reviews of a San Francisco law firm.
The state supreme court ruled for Yelp on Monday in a 4-3 decision, report the National Law Journal, Courthouse News Service and the San Francisco Chronicle. How Appealing links to additional coverage.
Three justices in the majority said Yelp was protected by the Communications Decency Act, while a concurring justice said Yelp couldn’t be enjoined because it wasn’t a party in the suit.
The injunction stemmed from a defamation suit filed by lawyer Dawn Hassell against her firm’s former client, Ava Bird. Hassell had sued after Bird acknowledged she wrote a one-star review of the Hassell Law Group that complained her lawyer had withdrawn from her personal injury case “because her mom had a broken leg, or something like that, and that the insurance company was too much for her to handle.” Bird had written the review under the name “Birdzeye B.”
“In all fairness, I have to share my experience so others can be forewarned,” Bird had written. “She will probably not do anything for you, except make your situation worse.”
Bird advised readers to “steer clear of this law firm” and to “research around to find a law firm with a proven track record of success, a good work ethic, competence and long term client satisfaction. There are many in the Bay area and with some diligent smart interviewing, you can find a competent attorney, but this won’t be one of them.”
The state supreme court said the firm had withdrawn from the representation because Hassell concluded that Bird was unhappy with its performance.
After the suit was filed, “Birdzeye B” posted an update to her review that said Hassell had sued her and “tried to threaten, bully, intimidate me into removing the review!”
Yelp was not a defendant in the case. Hassell obtained a default judgment totaling nearly $558,000 that ordered Bird to remove the defamatory reviews. The trial judge also ordered Yelp to remove reviews under the names “Birdzeye B” and “J.D.,” the author of another review Hassell believed to have been written by Bird.
Yelp filed a motion to set aside the judgment, or in the alternative to set aside provisions requiring Yelp to act in any manner. The judge refused, and an appeals court affirmed the injunction.
Three justices in the California Supreme Court’s majority said the trial judge’s order had violated Section 230 of the Communications Decency Act, which has been interpreted to protect publishers of content provided by others from defamation liability. Yelp would have received immunity under the law if it were named as a defendant in the case, according to three justices, in an opinion by Chief Justice Tani Cantil-Sakauye. Yelp would also have been shielded from injunctive relief, Cantil-Sakauye said.
“The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant,” Cantil-Sakauye said. “Put another way, 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 had contended that Yelp’s duty to comply with the removal order arose “as a party through whom the court must enforce its order,” rather than its status of a publisher. Cantil-Sakauye was not persuaded by that description.
The opinion added that the court could enforce its order against Bird thorough contempt sanctions.
Justice Leondra Kruger wrote the concurrence asserting that Yelp wasn’t a party to the suit and it was entitled to its day in court. Kruger said that if it were permissible to enter an injunction against a nonparty to a lawsuit that operates a website, the website operator would be entitled to immunity under the Communications Decency Act in these circumstances. “I express no view on how section 230 might apply to a different request for injunctive relief based on different justifications,” Kruger wrote.
A lawyer for Hassell, Monique Olivier, told the National Law Journal that the decision “stands as an invitation to spread falsehoods on the internet without consequence.” Olivier said the court had given a broad interpretation to Section 230, and Hassell is considering seeking review by the U.S. Supreme Court.
“With this decision, online publishers in California can be assured that they cannot be lawfully forced to remove third-party speech through enterprising abuses of the legal system, and those of us that use such platforms to express ourselves cannot be easily silenced through such tactics either,” Yelp said in a statement on its blog.
Updated July 5 to include statement from Yelp.
