High court can save internet speech

FIRST & FOREMOST

Donald Trump's recent threat to sue The New York Times has thrust libel law into the spotlight. However, if one wants to see truly incendiary statements, a better place to look might be the comments section of your favorite website, or perhaps the Twitter feeds of Trump's and Clinton's most bellicose online critics.

As many lawyers know, the seminal media defamation case is New York Times v. Sullivan, 376 U.S. 254 (1964), where the U.S. Supreme Court held that public officials suing for libel must demonstrate that the defendant published false information with "actual malice," i.e., knowing or reckless disregard for the truth. What many do not recall is that The New York Times was not sued for one of its articles, but for third-party speech - a political advertorial published in the paper that had been paid for by the Committee to Defend Martin Luther King.

So why aren't public officials suing online media outlets for perceived defamatory statements made by third parties in the comments section? And why aren't Facebook and Twitter facing a deluge of lawsuits based on inflammatory statements made by their users and disseminated on the Facebook and Twitter platforms?

One of the principal reasons is Section 230(c)(1) of the Communications Decency Act of 1996, 47 U.S.C. Section 230, which treats online publishers of third-party content such as websites differently than offline publishers such as print publications. Section 230(c)(1) states: "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(c)(1) means that websites generally have "immunity from liability for publishing false or defamatory material so long as the information was provided by another party," including website users. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003).

So why did Congress decide to treat online publishers differently?

As the California Court of Appeal has explained: "Interactive computer services have millions of users. The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect." Doe II v. MySpace Inc., 175 Cal. App. 4th 561, 575 (2009) (internal citations omitted).

Indeed, without Section 230, interactive websites where users freely express their thoughts and opinions about politicians, celebrities, local restaurants and countless other topics would probably not exist. Section 230 is also one the principal reasons why there can be no private right of censorship, i.e., the so-called "right to be forgotten," in the United States, as there is in the European Union.

Recently, however, some courts have chipped away at Section 230's protections. The most prominent example is the decision in Hassell v. Bird, 247 Cal. App. 4th 1336 (2016). There, an attorney sued a former client for defamation after the client posted critical reviews about the attorney on the Yelp consumer review website. The client did not appear or defend the lawsuit, and the attorney eventually obtained a default judgment for more than half a million dollars - plus an order for injunctive relief requiring that the critical reviews be taken down. Significantly, the trial court issued the takedown order not just against the former client, who could log into Yelp and delete the posts, but also against Yelp itself. That is significant because Yelp was not a party to the litigation. In fact, the attorney seeking the takedown order had not even provided Yelp with notice that she was seeking an order requiring both the former client and Yelp to take down the critical reviews.

Yelp later challenged the takedown order in the trial court and in the Court of Appeal. Yelp raised many arguments, including due process based on the lack of notice to Yelp, the First Amendment and Section 230(c)(1). A number of other courts around the country have held that Section 230(c)(1)'s prohibition on liability precludes injunctive relief such as the takedown order against Yelp. But the Court of Appeal disagreed, upheld the trial court's takedown order against Yelp and even suggested that Yelp could face contempt charges if it failed to comply.

The result is a clear end-around Section 230(c)(1) for plaintiffs seeking to effectuate their own version of a "right to be forgotten." While a direct lawsuit against Yelp would be squarely barred by Section 230(c)(1), creative plaintiffs may instead try to simply sue the commenter but request a takedown order against both the commenter and Yelp. According to the Court of Appeal, the plaintiff is not even required to notify Yelp that she is seeking such relief. This result is troubling, particularly in light of recent reporting by Eugene Volokh and Paul Alan Levy detailing a pattern of dozens of defamation lawsuits across the country that appear to have been brought against fictitious defendants in an effort to obtain judgments or stipulations that include takedown orders that can be presented to social media websites and search engine companies.

Fortunately, the California Supreme Court has granted review of Hassell. The Supreme Court has the opportunity to clarify that Section 230(c)(1) - or, alternatively, the First Amendment and/or the due process clause - does not permit takedown orders under the circumstances Yelp faced. In the meantime, we likely will continue to see an increase in litigation designed to scrub unwanted content from the internet.