Metropolitan News-Enterprise


Tuesday, July 3, 2018


Page 1


Supreme Court:

Court Cannot Order Yelp to Remove Derisive Review

Plurality Opinion Is Based on Immunity in Communications Decency Act for Third-Party Postings




The California Supreme Court, in a split opinion, yesterday reversed a Court of Appeal decision upholding an order that required Yelp, Inc. to remove a negative review of a law firm, holding that federal immunity applies to a website that is a repository of views posted by third parties.

The decision comes in a case where a woman, Ava Bird, left a one-star review of the Hassell Law Group on the popular website, expressing her displeasure with its representation in her personal injury action, advising:

“[T]o save your case, STEER CLEAR OF THIS LAW FIRM!”

The San Francisco firm and its owner, attorney Dawn Hassell, sued Bird, claiming the review was libelous.

That lawsuit resulted in a default judgment. San Francisco Superior Court Judge Donald J. Sullivan awarded Hassell and her firm damages and ordered Bird to remove the offending review, which she has not done.

The judgment also required Yelp to remove the offending review.


Yelp, which was not a party to the lawsuit, was served with the judgment. It moved to set aside the default, claiming in part that it violated both due process and § 230 of the Communications Decency Act of 1996.

Sullivan denied Yelp’s motion, and the First District Court of Appeal affirmed on several bases. The Supreme Court granted review solely on the due process and §230 issues.

Chief Justice Tani Cantil-Sakauye wrote a plurality opinion, joined by Justice Ming W. Chin and Justice Carol A. Corrigan. Justice Leondra R. Kruger wrote a concurring opinion.

Justice Goodwin H. Liu and Justice Mariano-Florentino Cuéllar each wrote a dissent. First District Court of Appeal Justice Therese M. Stewart, serving on assignment, joined Cuéllar’s dissent.

Acting as Publisher

Cantil-Sakauye quoted §230 as providing:

“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.”

She noted language elsewhere in the section that extends the law to state and local actions.

The appellate panel below had determined that, because Yelp was only the subject of an injunction, no liability had been imposed on it.

Cantil-Sakauye characterized this as an “end-run” around §230 immunity. By requiring Yelp to delete the offending review, she explained, the website was being treated as the publisher of the content in violation of the statute.

She wrote:

“The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant. Put another way, we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly.”

Finding this issue dispositive, Cantil-Sakauye continued:

“We believe the answer is no.”

Due Process Violated

Kruger’s concurring opinion focuses on due process, which Cantil-Sakauye did not analyze in depth. She wrote:

“Yelp is not a party to this litigation, and the courts’ power to order people to do (or to refrain from doing) things is generally limited to the parties in the case….Before Yelp can be compelled to remove content from its website, the company is entitled to its own day in court.”

Kruger agreed with Cantil-Sakauye’s analysis of §230, but not her choice to address it first. She observed that due process principles are “of considerably older vintage” than the federal statute.

Liu’s Dissent

In his dissent, Liu argued that the immunity afforded by §230 is only meant to protect online service providers from the high costs in defending against defamation suits. He wrote:

“Here, the trial court ordered Yelp to remove postings that have been already adjudicated to be defamatory. Hassell sued Bird, not Yelp, and the litigation did not require Yelp to incur expenses to defend its editorial judgments or any of its business practices.”

Liu also found Yelp’s due process arguments unconvincing. He wrote:

“I agree with the Court of Appeal that ‘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.’”

Liu concluded that “the Court of Appeal got it right.”

Cuéllar, in his dissent, said the issue presented is “as novel as it is important.”

He insisted:

“The plurality opinion expands this court’s precedent to reach its conclusion and authorizes interactive computer service providers to flout California court orders by asserting section 230 immunity. In doing so, the plurality opinion endangers victims of torts committed online, impermissibly limits the remedies available to Californians who rely on our state courts for protection, and sanctions a rule bereft of justification under California or federal law, with troubling implications for an Internet-dependent society.”

He went on to say:

“Nothing in section 230 allows Yelp to ignore a properly issued court order meant to stop the spread of defamatory or otherwise harmful information on the Internet. Instead the statute’s terms and scheme, applicable case law, and other indicia of statutory purpose make clear that Internet platforms are not exempt from compliance with state court orders where no cause of action is filed against, and no civil liability is imposed on, the provider for its publication of third party speech. Yelp may be subject to a properly issued injunction from a California court. Where an entity had the extensive notice and considerable involvement in litigation that Yelp has had in this case, due process concerns are far less likely to impede a court from fashioning a proper injunction to prevent aiding and abetting of unlawful conduct.”

The case is Hassell v. Bird, S235968.

Bird’s one-star review was still on’s page for the Hassell Law Group as of yesterday afternoon. The firm’s overall rating is five stars, the maximum rating on the website.


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