Non-Party Yelp Ordered to Remove Defamatory Reviews
In 2012, attorney Dawn Hassell represented Ava Bird for a period of 25 days related to a personal injury she suffered. Bird expressed dissatisfaction with the representation and Hassell withdrew from the representation. Subsequently, Bird published negative reviews on Yelp.com about her experience with Hassell and refused to remove the reviews despite informal requests to "remove the factual inaccuracies and defamatory remarks."
Hassell filed a lawsuit against Bird (Hassell v. Bird, (Cal.App.1 Dist.2016) __Cal.Rptr.3d __, 2016 WL 3163296) alleging, among other things, defamation and requesting injunctive relief in the form of an order compelling Bird and Yelp.com to remove the reviews. Bird never responded to the suit and default was entered. After submission of evidence at the prove-up hearing, the trial court entered judgment against Bird finding that the Yelp.com reviews submitted as evidence were indeed defamatory. The court also awarded Hassell injunctive relief ordering Bird and Yelp to remove the defamatory reviews, including ordering Yelp to remove the reviews.
Yelp subsequently objected to the judgment in a motion to set aside and vacate the entirety of the Bird judgment, including the removal order, arguing that it was not a party to the litigation and it was "immune from liability" for its publication of a review under section 230 of the Communications Decency Act (CDA). Finding that Yelp had been "aggrieved" by the removal order, which directly affected the operation of Yelp's business, but not by the default judgment against Bird, the court found Yelp could challenge the removal order only. As a result, the court considered whether the trial court had the legal authority to make the removal order directing a nonparty, Yelp, to remove Bird's defamatory reviews.
In support of its argument, Yelp asserted, among other things, the removal order violated constitutional protections, including its due process rights, and it constituted a prior restraint of speech. In finding Yelp's due process rights were not violated, the court noted that settled principles of law explicitly confirmed that injunctions can be applied to nonparties in appropriate circumstances. Specifically, the court found the trial court had the power to fashion an injunctive decree such that the enjoined party (Bird) may not negate the order by carrying out prohibited acts with or through a nonparty to the original proceeding.
Further, as the trial court had already found the specific speech at issue to be defamatory in a judicial proceeding, the court noted that defamatory speech is not afforded constitutional protections. Thus, Yelp was not entitled to notice and a hearing before it could be ordered to comply with an injunction prohibiting re-publication of speech already determined to be unprotected and tortious, nor could the defamatory speech be found to be a prior restraint on speech.
Finally, Yelp asserted the removal order was barred by section 230 of the CDA, 47 United States Code section 230 (section 230). In short, Yelp argued that under section 230, courts were prohibited from ordering website providers to remove content provided by third parties. While section 230 has been broadly construed to immunize website providers like Yelp from liability arising from content created by third parties, the court distinguished this situation by noting that Yelp had not been liable for anything, rather the judgment itself (and any liability) applied entirely to Bird. The court further distinguished any liability under a contempt proceeding for failing to comply with an injunction, indicating that it was a "different type of liability" than that contemplated by section 230.
Adding to what some may call a further erosion of section 230, this case speaks volumes about the broad reach of the court with regard to third-party content on websites. CDA immunity is typically a potent affirmative defense related to the publication of third-party content. As this case illustrates, however, courts may look for ways to circumvent the CDA in certain situations. In light of this decision, website providers like Yelp that provide forums for user-generated content may want to reexamine their policies related to the management of third-party content, especially if the speech at issue has been deemed defamatory in a judicial proceeding.
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