Tech, Civil Society Back Yelp's Fight Against Court Order to Remove 'Defamatory' Review
Yelp, which is challenging an order from a California state court to remove an individual's online "defamatory" review against a lawyer, is getting support from major civil society, industry and technology organizations including CTA, the Electronic Frontier Foundation (EFF), Facebook, Google and the Internet Association, arguing online free speech is threatened. The briefs also back Yelp's arguments to the California Supreme Court, which is hearing the challenge in Hassell v. Bird, that the lower court's order violates the company's due process rights and Section 230 of the Communications Decency Act (CDA), which protects online platforms from being held liable for content posted on their sites.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
In the case, attorney Dawn Hassell and her firm sued former client Ava Bird for allegedly posting a "derogatory" review on Yelp in 2013, according to amici briefs filed by EFF and Public Citizen, among the at least 13 filed since Friday. The briefs said Hassell got a default judgment against Bird, who didn't respond to the lawsuit, and then sought a court order against Yelp, which was not a party to the suit, to remove the review, prompting the company to challenge it. The briefs urge the state Supreme Court to overturn the lower court's ruling. Hassell told us Tuesday that Bird's comments were "defamatory," but referred us to her attorney Monique Olivier for comment. Olivier didn't return an email or phone message.
A Yelp spokeswoman emailed that "dozens of non-profits, legal scholars, and a wide spectrum of startup and established internet companies have sided with us to protect Yelp's right to publish our users' opinions and honest experiences with local businesses." The briefs urge the California Supreme Court to not only protect the company's "ability to distribute consumer opinions, but also protect anyone who relies on the availability of vital information online, or who may face intimidation to remove their honest speech from the internet," she said.
Santa Clara University law professor Eric Goldman, saying he's "deeply troubled" by the court order, told us Tuesday the case brings up three major issues. In addition to First Amendment considerations about publishing third-party content and the role of Section 230 in protecting companies from liability there are due process considerations. "Can an online publisher be bound to a court order when it was not a participant in the litigation?" he asked. "I think the appellate court just got it wrong and it did so based on judicial activism, not based on the law." This case, said Goldman, has gotten as far as it has because the court "had to disregard multiple bodies of law to reach its conclusion."
Goldman, who has written several blog posts about the case, said there are many cases seeking content scrubbed from online sites, and some involve court orders requiring the removal. He said the Consumer Review Fairness Act signed into law in December (see 1612150021) is inapplicable in this case because it bars businesses from prospectively acting to prohibit consumer reviews. He said California has a "powerful" law to stop strategic lawsuits against public participation (SLAPP) but it can be used only if a site like Yelp is involved in the suit and can invoke the anti-SLAPP statute to protect its interest. But Yelp was never sued and never got a chance to invoke it, he said.
EFF staff attorney Jamie Williams and analyst Karen Gullo wrote in a Tuesday blog post that since Hassell didn't prove the content in question was defamatory, Yelp said it couldn't be held liable for speech and couldn't be forced to remove the content. EFF wrote the decision is "frankly wrong" because the courts didn't understand that the First Amendment protects publishers and content distributors, prevented Yelp from challenging whether the speech was defamatory, and ignored a "Supreme Court’s clear holding that issuing an injunction against a non-party is a constitutionally-prohibited violation of due process." The blog post said a default judgment can't provide a "factual basis" for meeting a "very high bar on speech-restricting injunctions."
“There are few things more important to the historic and continued success of the internet than the intermediary liability protections enshrined in CDA 230,” wrote Internet Association CEO Michael Beckerman in a Monday news release. His association and CTA jointly filed an amicus brief supporting Yelp. In their brief, the industry groups said if the court's decision prevails "a vast new avenue of litigation abuse and vast new opportunities to suppress First Amendment rights would open up."
In a brief supporting the court decision, Erwin Chemerinsky, dean of the University of California-Irvine School of Law, and others argued Yelp's rights and protections weren't violated. "In this case, there was a legal process by which the statements were adjudicated to be defamatory. It is black letter law that once statements have been adjudicated to be defamatory, they may be permanently enjoined," they wrote. They said it's the only "effective" way to protect defamed victims.