Do online review sites like Yelp.com have to comply with court orders directed at people who post false and defamatory reviews about others? An appellate court in Los Angeles has said yes.
In Hassell v. Bird, the defendant, Bird, was found to have posted negative reviews on Yelp containing false statements about her former lawyer, Hassell. When the lawyer asked Ms. Bird to remove the posts, she threatened to post even more negative reviews – and did so.
That prompted Hassell to sue Ms. Bird for defamation and related claims. Ultimately the trial court awarded a default judgment against Bird, finding her liable for defamation. It issued an injunction ordering both her and Yelp to remove the reviews, and ordered Bird to pay damages.
Yelp appealed, seeking to vacate the trial court’s removal order on several grounds.
It contended that the order violated due process, because Yelp was not even a party to the court case. It also said the order violated its First Amendment rights “to distribute the speech of others.”
In addition, Yelp argued that the order was barred by Section 230 of the Communications Decency Act (CDA), which extends immunity from liability to both providers and users of “interactive computer services” which publish information provided by others.
The protection provided by the CDA is why sites like Yelp, Angie’s List, Amazon and hundreds of others are free to post false and defamatory reviews which, if printed in a newspaper or magazine, could trigger a lawsuit for libel.
The appellate ruling, written by Judge Ignazio John Ruvolo of California’s First District Court of Appeal, rejected all of Yelp’s arguments.
The order did not violate due process even though Yelp was not a party to the original lawsuit. The trial court issued an injunction, and under California law an injunction can apply to a nonparty if the court finds it has a relationship to the enjoined party.
(The ruling noted that Yelp’s own terms of service require its users not to post a “fake or defamatory review,” which the trial court had found Bird’s reviews to be. In fact, it pointed out, Yelp “explicitly” promoted one of her negative reviews, and downplayed positive reviews of Hassell.)
The removal order was not unconstitutional prior restraint of speech, the appellate ruling said.
An order prohibiting a party from making a statement, even a false one, is an unconstitutional intrusion on free speech. But defamation is not protected by the First Amendment, the ruling noted, and the trial court had already ruled that Bird’s statements were defamatory.
However, the injunction cannot require Yelp to remove any subsequent comments about the lawyer from Bird or anyone else – which the trial court had included in its order – because such an order would be unconstitutional.
What about the broad immunity granted by Section 230 of the CDA?
The appellate court determined that it did not apply here, because the trial court’s ruling did not impose any liability on Yelp. Hassell sued Bird, not Yelp, and was awarded damages and injunctive relief against Bird, not Yelp.
The CDA, it noted, does not restrict a court from directing an internet service provider to comply with a judgment which “enjoins the originator of defamatory statements” published on the provider’s website.
In fact, Section 230 states that it should not be “construed to prevent any State from enforcing any State law that is consistent with this section.” Since California law empowers courts to issue injunctions preventing the repetition of statements found to be defamatory, and to enforce those injunctions against non-parties (Yelp, in this case), the ruling is not barred by the CDA.
As a result, the appellate court said, the order compelling Yelp to remove the offending reviews is enforceable.
The advent of social media has seemingly spawned a whole new world in which virtually everyone is free to say anything about anyone online. The law appears to be slowly playing catch-up. At least in this instance, the court decided that some rules must apply.
M. Laurie Murphy