Yelp does not have to remove defamatory posts, state high court rules

The state Supreme Court ruled Yelp Inc. does not have to remove defamatory posts made by a client about a law firm even though the person who made the posts lost a $558,000 defamation case.

The 4-3 ruling hinged on the fact that Yelp was not included in the original case and therefore couldn’t be ordered to comply with the ruling.

The former client was barred from making additional defamatory posts, but Yelp won’t be required to suspend her account or prevent future posts. A wide variety of technology companies weighed in on behalf of Yelp with amicus briefs, arguing technology companies shouldn’t be held liable for the content users decide to post.

Attorneys representing the plaintiff, Dawn L. Hassell of Hassell Law Group, explained at oral argument they chose not to name Yelp as a defendant specifically to avoid having the defendants invoke Section 230 of the Communications Decency Act of 1996.

The law prevents the publishers of websites from being held liable for statements users post on them. Hassell et al. v. Bird, 2018 DJDAR 6528.

After Hassell won the defamation case in San Francisco County Superior Court on default judgment, Yelp refused to comply with a judge’s order to take down the posts, contending it wasn’t a party to the case and therefore isn’t bound by its rulings.

A 1st District Court of Appeal panel sided with the trial judge, maintaining the order imposed no liability on Yelp. But the state high court reversed the ruling in a hotly-contested split decision.

Chief Justice Tani Cantil-Sakauye wrote in the opinion that the plaintiff wanted to have it both ways. She wrote that Hassell didn’t want Yelp involved in the case, but she still expected the company to be covered by the outcome.

“We must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly,” the chief justice wrote. “We believe the answer is no.”

Cantil-Sakauye wrote that the opinion should not be read as lacking sympathy for anyone who has been defamed online. “Nevertheless, on this record it is clear that plaintiff’s legal remedies lie solely against Bird, and cannot extend — even through an injunction — to Yelp,” she wrote.

Justices Ming Chin and Carol Corrigan concurred with Cantil-Sakauye.

Justice Leondra Kruger cast the deciding vote in her own separate concurrence because Yelp was not a party in the case.

“I, like my colleagues, am sympathetic to plaintiffs’ dilemma. Plaintiffs have proved to the satisfaction of the trial court that Bird’s critical Yelp reviews are false; Bird has yet to comply with the court’s order to remove the reviews; and Section 230 forbids them from suing Yelp to require it to remove the reviews if Bird fails to do so,” Kruger wrote.

“But as I see it, issuing an injunction directly against Yelp, without affording it a meaningful opportunity to be heard, is not an available alternative. Plaintiffs’ understandable desire to circumvent section 230 does not permit us to cast aside either the ‘deep-rooted historic tradition that everyone should have his own day in court,’ or the fundamental due process principles on which that tradition rests,” she added.

Justice Mariano-Florentino Cuellar disagreed, writing in a dissent that the plurality decision would allow internet platforms to eschew responsibility for violations of defamation and libel laws.

“At core this case implicates a dispute not only about defamation on the internet, but about whether a court can fashion an effective remedy that applies to internet platforms,” he wrote. “The plurality opinion posits that our state’s protections against the willful spread of false, damaging information are just not compatible with the internet.”

Justice Therese Stewart of the 1st District Court of Appeal, sitting by assignment, concurred with Cuellar.

Justice Goodwin Liu wrote a separate dissent.

Monique Olivier, a partner with Olivier Schreiber & Chao LLP who represented Hassell, wrote in an email that she was disappointed by the ruling and her client is exploring all options, including an appeal to the U.S. Supreme Court.

Olivier wrote that the opinion “construes the reach of the Communications Decency Act beyond its intended scope and stands as an invitation to spread falsehoods on the internet without consequence.”

“As the dissenting opinions recognize, the judgment Ms. Hassell obtained does not seek to impose liability upon Yelp in any way, and the CDA was never intended as a ‘trump card’ permitting Yelp to evade responsibility for hosting defamation,” she added.

Aaron Schur, Yelp’s deputy general counsel for litigation, saluted the victory in a blog post and admonished the plaintiff.

“Litigation is never a good substitute for customer service and responsiveness, and had the law firm avoided the courtrooms and moved on, it would have saved time and money, and been able to focus more on the cases that truly matter the most — those of its clients,” he wrote.

Thomas R. Burke, an attorney with Davis Wright Tremaine LLP, argued on behalf of Yelp before the state Supreme Court.