On 3 April 2018 the California Supreme Court will hear oral submissions in a case of Hassell v. Bird.  The case is likely to have implications on the ability of business owners, including those who are located in the UK, to have fake and defamatory online reviews removed from US based websites. 

It involves the question whether the original trial court acted properly when it ordered a website, Yelp.com – which was not a party in the original lawsuit – to delete negative reviews deemed defamatory by that trial court.

Yelp’s position is that, inasmuch as it was not a party to the original action, the “removal order” infringes on its due process rights.

Some UK readers of this blog, might find the issues in the case somewhat baffling. After all, if a court declared a defamatory review unlawful and the claimant was granted a corresponding court order to this effect, it almost goes without saying that the website operator, where the defamatory review is posted, will need to comply with the court order and have the defamatory review removed from its website once it has been notified of the order.

This most likely would have been the position had the website operator been located in the UK but in the US, website operators are not expected to remove defamatory posts from their website simply because a court granted an injunction against the poster. The general rule is that to compel an operator of a website to remove a defamatory post, the injunction must be directed at the website operator, who must be a party to the legal proceedings so that it can defend itself against the grant of such injunction, most likely on grounds of right to free speech (First Amendment).

The problem of course is that in the US, since 1996, website operators have enjoyed immunity from defamation proceedings under 47 U.S.C. § 230 (Section 230) of the Communications Decency Act (CDA), which says that websites aren’t legally responsible for third party, or for user generated content.

If website operators have immunity from defamation proceedings in relation to third party’s posts, there is no point suing them in the first place, which ultimately means that you can obtain as many defamation injunctions as you want against the poster, if they don’t remove the post themselves, there is nothing else you can do to facilitate the removal of a defamatory post.

Since 1996, lawyers in the US have obtained thousands of useless defamation injunctions. If they had not been able to identify a real defendant, with name and address to enforce the defamation injunction against, the defamatory post would often remain online forevermore.

Some website operators such as GlassDoor.com have even been successful in asserting the First Amendment interests on behalf of anonymous users by successfully objecting to a disclosure application of that user’s information to an aggrieved defamed party (Glassdoor Inc v Superior Court of Santa Clara, Court of Appeals of California, Sixth District. 10 March 2017).

Other website operators have taken matters even further and imposed a “no removal policy” not only on themselves but also on their users who posted the defamation in the first place, leaving aggrieved defamed parties with no ability to have defamatory posts against them ever being removed. A notable example of this practice is the website RipOffReport.com.

So whilst being hailed by some as “the law that gave us social media”  Section 230 in its current form has resulted in personal devastation to many individuals all over the world, whose lives and livelihood have been shattered by the impotency of a legal system to provide them with the very fundamental protection to their good name and to their commercial interests.

The extent of the immunity that Section 230 in its current form gives to website operators cannot be underestimated. Professor Eric Goldman, of Santa Clara Law School summarised the position like this:

“Section 230 preempts all state laws that say, or could be interpreted to hold, that websites are liable for third party content are ineffective (unless they fit one of the three statutory exceptions).  This includes any prosecutions under state or local criminal law where the crime in predicated on a website’s liability for UGC (user generated content)”. 

The reason why Hassell v Bird is the type of case every US Internet Law Attorney is eagerly following is that if the California Supreme Court upholds the decision of the lower court, Section 230 will never be the same again.

The facts of Hassell v Bird are also of special interest to lawyers and can be summarised as follows: Ava Bird was a client of attorney Dawn Hassell in California on a personal injury claim. Hassell withdrew from representing Ms Bird because they had trouble communicating with her. Ms Bird then posted negative reviews about Hassell on Yelp.com. In fact, she posted one review under her real name and another using a pseudonym.

Hassell sued Ms. Bird for defamation and after she failed to respond the claim, they obtained a default judgment.

The judgment included an injunction against Ms Bird and an order that she removes the defamatory reviews from Yelp.com.  The judgment also contains an order requiring Yelp to remove Bird’s defamatory reviews from its website (the removal order).

Yelp, not only refused to obey the removal order but in retaliation, it promoted one of Ms Bird’s reviews and displayed it as “recommended”.

Yelp who was not a party in the defamation action, filed a motion to vacate the judgment. It claimed, among other things, that its Section 230 rights have been violated by the removal order and that the removal order was tantamount to an injunction. Because it was not a party to the proceedings, the grant of the “injunction” against it was unlawful. The trial court denied Yelp’s motion.

Yelp appealed to the California Court of Appeal, which held that the removal order was not the same as an injunction and therefore the court could in fact force Yelp to remove the defamatory reviews from its website, without giving it any opportunity to argue that the reviews were accurate or otherwise constitutionally protected. (Hassell v. Bird, 247 Cal.App.4th 1336 (2016)).

The court also held that the removal order was consistent with Section 230, which prohibits defamation (and other) suits against companies like Yelp based on their posting other people’s speech on their sites. This was because Yelp was not in fact a publisher and was not a party to the defamation law suit.

Yelp asked the California Supreme Court to review the case. If the review is rejected, the result could be that individuals may be able to compel website operators in the US to remove reviews with a default judgment or other court order in the right circumstances and without having to name the operator of the website in a lawsuit. This will represent a sharp shift from the current position and will give hope to many victims of online defamation who are currently held to ransom by the blank immunity US based website operators enjoy.

A full list of the case documents can be found here.

Yair Cohen is a partner at Cohen Davis Solicitors