Nonparty injunction ruling in online review case is a first

Consider this scenario: Someone posts a harsh review of a hotel on TripAdvisor. The hotel believes the review is defamatory. For two decades, federal law -- Section 230 of the Communications Decency Act -- has made clear that TripAdvisor and other online service providers are immune from claims seeking to hold them liable for publishing or distributing information posted by their users. So, instead of suing TripAdvisor, the business owner sues the author of the review and obtains a ruling that the post is defamatory. The court issues an injunction requiring the author of the review to remove it.

But can such an order also apply to TripAdvisor? Can the court require TripAdvisor, as a nonparty to the case, to take down the review if the author does not? Or what about Google? Can the court enter an order forcing Google to block all search results that would link readers to the defamatory review?

This is no law school hypothetical: It happens all the time. Online platforms -- websites like TripAdvisor and Yelp that host user reviews, social media services like Facebook and Twitter that allow social and personal commentary, search engines like Google and Bing that link to material posted across the internet, and even infrastructure services like Cloudflare and Verisign -- are often the target of injunctions that purport to require them to remove or block access to content posted by their users or other third parties.

In most of these cases, the service provider has never been named as a party in the underlying lawsuit, has not been given prior notice of the case, and has had no opportunity to appear to defend its rights. Yet the provider may be presented with an injunction and told that failure to censor the material lead to contempt of court. Whether such orders are lawful is a matter of considerable significance to online intermediaries, their users, and the public at large.

On July 2, the California Supreme Court issued a landmark ruling squarely addressing these issues. In Hassell v. Bird, the Supreme Court confirmed, by a 4-3 vote, that online service provider enjoy strong protections against being compelled to remove user-submitted content in cases to which they are not parties. 2018 DJDAR 6528.

The Hassell case began when Dawn Hassell, a personal injury lawyer, sued Ava Bird, who had posted an unflattering review of Hassell's law firm, on Yelp. After Bird failed to appear, the court entered a default judgment finding that Bird had defamed Hassell and requiring Bird to remove the review. But the court also extended its order specifically to apply to Yelp even though Yelp was not a party to the case. When Yelp found out that it was under an obligation to take down the review, it asked the court to vacate the injunction. But the court refused. It concluded that binding Yelp to the injunction was permissible under California law, notwithstanding the immunity provided by Section 230. The Court of Appeal agreed, and so Yelp turned to the California Supreme Court.

The Supreme Court reversed the lower court's decision. The high court held that Yelp could not be required to remove Bird's review and that an order requiring Yelp to do so was invalid. This result was welcome news to the wide array of online service providers and public-interest groups that filed amicus curiae briefs in the case. But the ruling was agonizingly close, with four separate opinions filed and no single opinion speaking for the court. Even the four justices that sided with Yelp were divided about the best rationale for reaching that outcome.

In a plurality opinion written by Chief Justice Tani Cantil-Sakauye, three justices relied exclusively on Section 230 to invalidate the removal order as applied to Yelp. That result makes perfect sense. In enacting Section 230, Congress gave online intermediaries broad immunity from claims arising from third-party content that they publish or make accessible. This immunity has been essential to the growth of online services and has allowed the internet to flourish largely free of regulation. Yelp unquestionably would have been entitled to Section 230 immunity had it been sued directly for publishing Bird's review. And plaintiffs like Hassell should not be permitted to evade that protection by making a tactical decision not to name the service provider as a defendant and instead seek to bind it as a nonparty. As the plurality explained, that maneuver would "subvert a statutory scheme intended to promote online discourse and industry self-regulation." Extending removal orders to "otherwise immunized nonparties would be particularly conducive to stifling, skewing, and otherwise manipulating online discourse" -- precisely the result Congress sought to avoid.

There is, however, another path to that result, which was explored in Justice Leondra Kruger's concurring opinion. While Justice Kruger agreed that Section 230 protected Yelp, she preferred to rely on established principles of due process and equity, which limit when court orders can bind those who are not parties. Under those rules, nonparties can be bound only when they actively and knowingly help a party to evade a court order. But, as Justice Kruger explained, a service provider like Yelp that merely declines to remove or block material created by a user is not aiding and abetting a violation of the injunction. Yelp thus could not be ordered to remove the review without a separate showing that Yelp itself was acting unlawful by continuing to publish it.

This approach is especially important in cases involving alleged copyright or trademark infringement. That is because Section 230, by its terms, does not apply to intellectual property claims. And plaintiffs in such cases are increasingly seeking nonparty injunctions to compel online service providers to block allegedly infringing material.

In a recent case in Virginia, for example, the American Chemical Society obtained a broad injunction forcing a wide range of online intermediaries -- including search engines, ISPs, web hosting services, and domain name registries -- to cease facilitating access to any websites operated by an entity called Sci-Hub. Such injunctions are dangerous, as they target core online infrastructure providers and may result in the disappearance of entire websites from the Internet. Justice Kruger's articulation of established due process principles in this novel context will help intermediaries fight back against sweeping orders such as these.

In a wide range of other cases, moreover, Hassell's importance will be immediately felt. The decision will put an end, at least in California, to the ploy of trying to use nonparty injunctions to force online intermediaries to censor user-created content. As the first state supreme court to address this gambit -- and the first appellate decision in the country to apply Section 230 in this scenario -- the California Supreme Court's ruling is likely to influence how courts nationwide approach these issues. The ruling confirms that Section 230 has a broad reach in cases seeking to hold online service providers responsible for the speech of their users, and it makes clear that this immunity cannot easily be circumvented. That will ensure that Section 230 continues to play the role Congress intended for it in sparing online intermediaries from unnecessary entanglement with the courts based on their role as publishers of other people's content.

The result in Hassell does not mean, however, that people genuinely wronged by online speech have no recourse. As the court explained, injunctions against defamatory material remain fully binding on those who actually create or develop that content. Bird, and other speakers like her, can be held in contempt, and even face imprisonment, for failing to obey such orders. In addition, many service providers have voluntary policies for removing content that has been found by a court to be defamatory. One of the purposes of Section 230 was to encourage those providers to self-regulate, and it honors that purpose for them to respond, on a voluntary basis, to court orders determining that material posted on their services is unlawful. But Hassell offers a valuable reminder that using procedural games to conscript online intermediaries into censoring the internet is both bad policy and bad law.

Brian drafted an amicus brief on behalf of Google in Hassell v. Bird.