Yelp Forced To Remove Defamatory Reviews–Hassell v. Bird
[Warning: Brutally ugly opinion and long blog post ahead]
The evisceration of Section 230 continues. Yesterday I explained that the last 12 months have been tough for Section 230 jurisprudence. Today’s opinion is worse than *all* of the cases I discussed yesterday–and you better believe I don’t make that statement lightly!
This case involves Dawn Hassell, an attorney (naturally), and Ava Bird, a former client. Hassell alleges Bird posted a negative review on Yelp under the name Birdzeye B (Bird <=> Birdzeye–get it?). A few months later, Birdzeye updated the review with further negative comments. (Along the way, Hassell also replied to Birdzeye’s review sharing substantive details about their relationship, which may be a no-no under attorney confidentiality rules. See also Cassandra Burke’s article). There was a second negative Yelp review of Hassell by “J.D.” Hassell claimed the review must be fake because she never had a client with the initials J.D., even though a client reviewing a lawyer might logically prefer a pseudonym. Hassell cited other reasons to believe JD’s review was a fake review from Bird. Yelp filtered JD’s review, but the court doesn’t discuss the implications of that filtering further.
Hassell sued Bird, and Bird defaulted. Eventually, the trial court held a “default prove-up hearing,” and Bird no-showed again. The court awarded over a half-million in damages against Bird and granted the following injunctive relief:
Defendant AVA BIRD is ordered to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from [Y]elp.com and from anywhere else they appear on the internet within 5 business days of the date of the court’s order.
Defendant AVA BIRD, her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website.
Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order.
When Hassell approached Yelp to remove the reviews, Yelp told her to buzz off. Yelp later formally intervened in court. I’m going to gloss over the procedural details of Yelp’s intervention, but the court spends a lot of time discussing them, and the procedure makes a big difference in this case. I’m hoping commentators with more expertise in California civil procedure than I have will weigh in with their thoughts about the procedural angles, because some of it seemed goofy to me.
As a result of this procedural wrangling, Yelp does not have standing to challenge the default judgment against Bird, but it has standing to challenge the part of the injunction ordering it to remove reviews. As the court notes in a footnote: A “default judgment conclusively establishes, between the parties so far as subsequent proceedings on a different cause of action are concerned, the truth of all material allegations contained in the complaint in the first action, and every fact necessary to uphold the default judgment.” Thus, by the time the case gets to the appeals court, it thinks there’s been a conclusive legal determination that the reviews at issue were defamatory, even though no one actually litigated this question because Bird defaulted. As a result, Yelp must treat the reviews as defamatory, even though Yelp never had chance to litigate that question because it wasn’t named as a defendant in Hassell’s suit against Bird. So once Bird defaulted on the defamation suit, that locked in the legal conclusion that the reviews were defamatory even against interested third parties like Yelp. The court angrily rejects any questions about the sufficiency of the default judgment process, although we have ample reason to be skeptical that it (or any ex parte process) is a reliable path to justice.
Oddly, nowhere does the court discuss that Yelp lets users delete their reviews, so Bird can effectuate the removal injunction without any assistance from Yelp. This is in contrast to the Ripoff Report cases like Blockowicz and Giordano (discussed below), where users couldn’t delete reviews after publishing them. The court could have thrown the book at Bird for ignoring the injunction, so the court didn’t need to involve Yelp.
Even so, Yelp should easily win against any effort to compel it to remove users’ content…right? No. The opinion drips with disgust that Yelp continues to publish content that a court has said is defamatory. In turn, the court makes every possible legal inference against Yelp. You might want some anti-nausea medicine on hand for this next part of the blog post.
First Amendment. The court denigrates Yelp’s First Amendment interest as a content curator. Consider this statement:
To the extent Yelp has ever meant to contend that an injunction requiring Bird to remove defamatory statements from the Internet injuriously affects Yelp, we disagree. Yelp’s claimed interest in maintaining Web site as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment
Of course any removal order injures Yelp by usurping Yelp’s editorial policies about its content database. But because of the default judgment on defamation, the court can neatly sidestep that First Amendment injury by claiming that we know this content is beyond First Amendment protection.
Then again, the court isn’t interested in Yelp’s editorial policies because it treats Yelp more like a passive technology conduit that gets no First Amendment love:
In order to claim a First Amendment stake in this case, Yelp characterizes itself as a publisher or distributor. But, at other times Yelp portrays itself as more akin to an Internet bulletin board—a host to speakers, but in no way a speaker itself. Of course, Yelp may play different roles depending on the context. However, in this context it appears to us that 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.
What the hell is an “administrator of the forum,” and what legal consequences attach to that status? We’re not talking about the free speech rights of a janitor with a mop. This case involves a curator of speech–and even if the curator is just “administrating,” telling a curator how to administrate raises significant speech interests that deserve more respect than this court gave it.
I’ve addressed a similar issue regarding California’s “erasure” right, which requires UGC sites to give users the power to delete their own content. I’ve raised First Amendment concerns about the statute because it infringes upon the UGC site’s independent speech interests in gathering and curating content. This court seems to suggest we can completely ignore those speech interests because speech janitors don’t have any First Amendment interests. UGH.
Due Process. Consistent with this denigration of Yelp’s speech interests, the court doesn’t see any due process problems with ordering Yelp to remove content even though it wasn’t a party to the Hassell-Bird lawsuit:
Yelp does not cite any authority which confers a constitutional right to a prior hearing before a distributor can be ordered to comply with an injunction that precludes re-publication of specific third party speech that has already been adjudged to be unprotected and tortious.
Apparently, the court think this is no different than telling a janitor to do a cleanup on aisle 5.
Still, we don’t normally bind non-parties to court orders. For example, FRCP 65 only allows injunctive relief against “(A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation” with them. Yelp doesn’t fit into (B), and how is it in “active concert or participation” with Bird other than by publishing her reviews?
California’s civil procedure rules appear to be much broader than FRCP 65. Courts have extended injunction compliance “to classes of persons through whom the enjoined person may act.” The appeals court doesn’t explain why that legal theory extends as far as Yelp; mostly the court just swats down Yelp’s case citations; and the court conclusorily says “a trial court does have the power to fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonparty to the original proceeding.” I guess California courts have virtually unlimited discretion to apply injunctions to non-parties as they see fit?
Section 230. Even if the court somehow finds a way to trash the First Amendment and due process to uphold this injunction, at least the order should fail statutorily because Congress instructed otherwise in Section 230. Indeed, Section 230 has been applied to removal injunctions several times. See, e.g., Blockowicz, Bobolas, Medytox and Giordano.
Here’s the court’s Section 230 jujitsu:
The removal order does not violate section 230 because it does not impose any liability on Yelp….
Assuming, as Yelp has maintained, that Yelp played no role in the creation of that defamatory speech, an order directing Yelp to remove only those reviews that are covered by the injunction does not impose any liability on Yelp….
If an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court….
…sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content.
WTF??? As a non-party to the lawsuit, the court says Yelp doesn’t face liability from the suit itself, and the court thinks contempt sanctions–including the possibility of monetary damages–against a non-party don’t count as “liability” because it’s “a different type of liability”? And a judicial compulsion to remove content that Yelp chooses to publish doesn’t treat Yelp “as a publisher or distributor”? Wow.
What about the contrary Section 230 precedent I cited above? The court says:
The removal order simply sought to control the perpetuation of judicially declared defamatory statements. For this reason, Yelp seriously understates the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp has cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider’s Web site….Neither party cites any authority that applies section 230 to restrict a court from directing an Internet service provider to comply with a judgment which enjoins the originator of defamatory statements posted on the service provider’s Web site
So the court is flat-out wrong. While I believe it’s correct that none of the cases were posed as contempt proceedings, the actions in both Blockowicz and Giordano also came after lower court findings of defamation. And in any case, WTF? Is the court saying that Section 230 preempts a direct lawsuit against a UGC site seeking injunctive relief, but it’s totally OK to reach the same result by not naming the UGC site in the lawsuit and then enforcing an injunction via contempt proceedings?
Prior Restraint. As an indicator that default judgments are a joke, the lower court’s injunction required the removal of Birdzeye’s and J.D.’s already-published reviews and “any subsequent comments of these reviewers”–apparently without regard to whether or not those subsequent comments were in fact illegal. The appeals court doesn’t care about Yelp’s general prior restraint arguments but does say this injunction against future content goes too far. The court remands the case to the lower court to fix the injunction to apply only to specific reviews.
I can’t stress enough how terrible this opinion is, and how much danger it poses to Section 230. In terms of impact, this case rips a far bigger hole in Section 230 than the Doe 14 v. ModelMayhem ruling, because that opinion only exposed UGC sites to liability from their users, while this case opens up holes that everyone–users and non-users alike–can abuse. Further, the court designated this opinion as published, making it citable and binding precedent. (I think I once read a stat that less than 10% of California appellate opinions are designated as published and citable). So as one of the rare citable California appellate opinions, this opinion will have outsized influence.
Let’s look at the mischief opportunities of this opinion. Assume a plaintiff is unhappy about negative user content discussing it. Maybe it’s a consumer review, or just unflattering content. Here’s how a plaintiff can scrub that content off the Internet:
Step 1: sue the content poster for defamation in California state court. Do not sue the UGC site because (a) they are immune under Section 230, or (b) they might decide to fight substantively.
Step 2: take advantage of loose service of process rules and or otherwise hope the poster doesn’t appear in the case. For example, non-California residents aren’t likely to fight in a California court even if they get notice.
Step 3: get a default judgment finding defamation. If the user does make an appearance, a stipulated judgment with the user could reach the same result.
Step 4: seek an injunction requiring removal by the UGC site. Once the judge accepts the service of process and concludes the defendant didn’t show, the judge will probably do just about whatever the plaintiff asks. With the default judgment, the plaintiff can then use the coercive effect of contempt to force the UGC site to remove the content so long as the UGC site is under California’s jurisdictional reach–which most UGC sites are.
Voila! A right to be forgotten in the US, despite the First Amendment and Section 230.
As an added bonus, in the same lawsuit, the plaintiff can target multiple items of unwanted content by claiming it’s also written by the defendant or someone working in concert with the defendant. For example, I don’t believe it was ever confirmed that Birdzeye and JD are the same person, but consistent with the less-stringent approach deployed by judges when faced with default proceedings, the court treats both reviews as if the author(s) of the opinions was in court. If, in fact, JD is a different person, then Hassell successfully scrubbed JD’s content without ever suing the actual author or serving proper notice on the author. As you can see, there’s a great collateral damage potential here.
We’ve already seen default judgments used as a search engine scrubbing tool before, and we’ve even seen search engines stiffen up against these possible abuses. If search engines are subject to the same contempt risks as Yelp–and I can’t see why not–this opinion’s scrubbing roadmap should be equally effective against search engines.
Can This Opinion Be Fixed?
Based on the way the court structured this opinion, fixing it will not be easy. Yelp can appeal to the California Supreme Court, but they have discretion whether or not to hear the case. Depublishing the opinion would be a smaller but still fairly effective step, but the odds of this panel depublishing its opinion seem remote.
Congressional fixes to this ruling are virtually impossible. It probably would require a substantive change to Section 230, and if Congress ever reopens Section 230 for amendment, that will almost certainly end badly.
The California legislature could fix this opinion by clarifying when non-parties can be bound by a court order, at least when speech interests are implicated. If this opinion doesn’t get corrected in further court proceedings, a statutory fix is probably the best of the not-great options. Even then, the judicial hack I described probably works in other states’ courts, depending on the strictness of their rules about binding non-parties, so it could require state-by-state legislative fixes.
UGC sites could also try to avoid default defamation judgments. They could provide financial or other support to their users who are sued to encourage them not to let a default judgment occur. Yelp did help Bird in this case, and as a different example, YouTube has set up a defense fund for its content providers who face bogus copyright infringement claims. Or UGC sites might decide to substantively intervene in cases while they are still pending rather than letting the case go to default. Putting aside the costs of doing that, I doubt UGC websites will be excited about fighting a case their users aren’t willing to fight; and UGC websites are not great proxies for adjudicating the legitimacy of UGC content (see, e.g., the Garcia v. Google fiasco, plus of course the ridiculousness of Google acting as the court of first instance for RTBF takedown demands). Avoiding defaults also depends on proper service of notice, and I have a sinking suspicion that many default judgments regarding online content (not this one) are the result of improper or ineffective service of notice.
Even if UGC sites wanted to intervene earlier, they may not even know that their users are being sued. There’s no foolproof way for a UGC site to see when a lawsuit against one of its users is based on content on its service. That could be fixed with better technological tools to track complaint filings. It could also be fixed statutorily by requiring plaintiffs to give notice to a service provider when a lawsuit implicates content on its service.
Case citation: Hassell v. Bird, 2016 WL 3163296 (Cal. App. Ct. June 7, 2016)
UPDATE: Cindy Cohn of EFF wrote about some related abuses of Jane Doe lawsuits.