Online client and customer reviews exercise an increasingly substantial
influence in the marketplace, even for professional and legal services.
Lawyers have both invested resources in building a social media presence and
struggled to effectively counteract negative online reviews. Some have
landed in hot water for revealing confidential client information in responding
online to negative reviews. See,
e.g.,In re Mahoney, Bar Docket No. 2015-D141 (D.C.
Office. of Disc. Counsel, June 9, 2016). In one recent case,Hassell
v. Bird, No. CGC-13-530525 (Cal. Sup. Ct. 2013), a California
attorney went so far as to sue a former client for defamatory Yelp reviews
after the termination of the representation.
Dawn Hassell and the Hassell Law Group represented Ava Bird in a
personal injury case in 2012. Shortly after the representation began,
Hassell withdrew, after which Bird posted numerous negative and false reviews
on Yelp.com about Hassell and her law firm. Hassell requested that Bird
take down the reviews. Bird refused, and threatened to post more negative
reviews and to cause others to do the same. In response, Hassell filed
suit against Bird for defamation. After Bird failed to appear in the case
before the California Superior Court for San Francisco County, a default
judgment was entered against her in the amount of $557,918.75 and the court
issued an injunction ordering her to take down the defamatory reviews.
More remarkably, the court separately ordered Yelp, not a party to the
litigation, to remove the defamatory review.
Bird
was a judgment-proof defendant and ignored the injunction. Rather than
pursue sanctions against Bird for noncompliance, Hassell sought to compel
Yelp’s compliance with the order. Yelp refused and moved to vacate the
judgment. The court denied Yelp’s motion to vacate, and Yelp appealed
from that decision, arguing that 1) it could not be bound by an injunction
resulting from a proceeding to which it was not a party, 2) the court’s ex
parte order to remove content violates Yelp’s First Amendment free speech rights,
and 3) it is immunized from liability (including for civil contempt) as a
third-party “interactive computer service” provider under Section 230 of the
Communications Decency Act (CDA). See Hassell v. Bird, 247 Cal.
App. 4th 1336 (2016). California’s First District Court of Appeal upheld
the order requiring Yelp to remove the reviews, remanding to the trial court
only for determination of the scope of the order (to ensure that it did not
constitute an unconstitutional prior restraint as to speech that Bird may make
in the future). Yelp has filed a petition for review to the California
Supreme Court, contending that website publishers are entitled to notice and
hearing before they can be ordered to remove content, and that Section 230 of
the CDA bars injunctions against website publishers related to third-party
content.
The
issue of whether an injunctive order can bind a non-party not appearing in the
case is a salient one. The court held that such an injunction was valid
under California law because the injunction extended to Yelp as a person
“through whom the enjoined person [Bird] may act.” Based on this finding
of a close connection between Yelp and Bird, the court held that Yelp could be
ordered to effectuate the injunction against Bird. The Hassell court did not discuss federal
precedent regarding the requirements of the Due Process clause. On appeal
to the Supreme Court of California, Yelp raises this question, arguing that it
is not one through whom Bird may act and that it cannot be required to comply
with an order arising from a proceeding to which it was not a party.
Before the Court of Appeals Yelp raised its First Amendment right “to
distribute the speech of others,” arguing that absent notice and an opportunity
to be heard, it could not be enjoined from distributing a user-generated
post. The court found that Yelp had no such First Amendment interest
because “the removal order does not treat Yelp as a publisher of Bird’s speech,
but rather as the administrator of the forum that Bird utilized to publish her
defamatory reviews.” Further, the court held that the speech, having been
validly found to be defamatory, is unprotected speech. Yelp also argued
before the Court of Appeals that the order is deficient because it is based on
a default judgment where the falsity of the speech and culpability of the
defendant were not litigated in an adversarial process. The court denied
Yelp standing to litigate the merits of the case, holding that the entry of a
default judgment is sufficient to support the order. Yelp now raises this
question on appeal to the Supreme Court of California, arguing that as an
initial matter it has a protectable speech interest in its users’ reviews and
that to the extent that this right is compromised based on a finding that such
speech is defamatory, it must be afforded notice and opportunity to be heard on
the merits.
The question of whether Section 230 of the Communications Decency Act
(CDA) immunizes Yelp from civil contempt liability is one that has captured the
attention of in-house counsel across the digital media sector. Josh King,
general counsel for Avvo.com, for example, has taken issue with the decision,
telling Corporate Counsel: “If a forum site is going to be liable for third-party
content, whether ‘ordinary’ liability or contempt liability for ignoring a
court's order, that's the sort of thing that Section 230 is supposed to
immunize against.”
Section 230(c)(1) of the CDA provides that “no provider or user of an interactive
computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.” Section
230(e)(3) further provides that “no cause of action may be brought and no
liability may be imposed under any State or local law that is inconsistent with
this section.” Courts have construed this to broadly immunize those, like
Yelp, who provide an online platform for individual users to post their own
content. Many in the online review and social media space view this
immunity as vital to their role as stewards of an open Internet. Without
it, the likes of Yelp, Facebook, Twitter, and Airbnb could be forced to expend
substantial resources reviewing and monitoring speech on their platforms so as
to avoid facing crippling legal expenses and damages. In effect, the open
Internet as we know it could very well be muzzled.
The Hassell decision does not ignore or
eviscerate the CDA’s grant of immunity. But it does substantially
diminish its scope. While the Hassell court held that the CDA immunizes Yelp
from liability for the defamatory speech of its users, under its reading of
Section 230, the grant of immunity does not extend to immunity from civil
contempt liability. As a result, it held that Yelp would be properly
subject to civil contempt liability for failing to comply with the court’s
order even though that injunction resulted from the speech of a Yelp
user. Whether Section 230 permits the imposition of civil contempt
liability as to otherwise immunized providers of open web platforms is a novel
question of law.
But the reach of Section 230 grant of immunity has been in the spotlight
in recent months. In March the First Circuit decided Doe v. Backpage.com, LLC, the
most recent high-profile decision relying on CDA Section 230 to hold that a
website operator was immune from liability arising from content posted by its
users. 817 F.3d 12 (1st Cir. 2016). There the court held that
Backpage.com could not be held liable to three plaintiffs who, as minors, had
been victims of sex trafficking and who sued Backpage.com for advertisements
posted on their site advertising the minors as escorts (under the site’s
“escorts” section). Backpage.com was covered by Section 230 despite the
fact that it had intentionally moved into the space after Craigslist had
cracked down on such advertisements on its site. Backpage.com had an Adult
Entertainment Section containing an Escorts sub-section for these types of
advertisements. It also removed certain ads, including those that were
posted as part of sting efforts to apprehend those responsible. Despite
this, the First Circuit, reluctantly, held that Section 230 immunizes
Backpage.com from liability for the user-generated posts.
In response to the Backpage.com holding, the Senate opened an
investigation regarding how to amend the CDA to combat online sex trafficking,
and served subpoenas seeking information from Backpage.com’s CEO Carl
Ferrer. In late March, when Ferrer failed to respond, the Senate
Permanent Subcommittee on Investigations sought to have him held in
contempt. Senate
Permanent Subcommittee on Investigations v. Carl Ferrer, Misc. No.
1:16-MC-00621-RMC (D.D.C. March 31, 2016). On July 19, 2016, the parties
completed briefing on the issue for the district court’s decision.
The Hassell court did not discuss the
Backpage.com controversy in its decision. But its decision, if upheld,
could provide additional precedent for those seeking to narrow the construction
of Section 230. If the Hassell holding stands, it could
provide more complete relief to victims of defamatory and otherwise harmful
online speech. It would also impose a greater burden on providers of
online speech platforms. For that reason, interested industry amici may
join Yelp in seeking review and reversal of the Hassellcourt’s decision.
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