US Supreme Court petitioned over attorney’s bad Yelp review by ex-client

An attorney for a lawyer who was defamed in an online Yelp review has filed a petition to the U.S. Supreme Court, asking it to resolve the question of whether the San Francisco company can be forced to remove the post.

If successful, the case would have the potential to recast the understanding of liability under the main law protecting free speech on the internet.

Yelp Inc. won a narrow, 4-3 decision in the state Supreme Court case this summer. Hassell v. Bird, 2018 DJDAR 6525 (July 2, 2018).

Writing for a three-judge plurality, Chief Justice Tani Cantil-Sakauye found Yelp was protected by the 1996 Communications Decency Act. Section 230 of that federal law states that online platforms are not liable for content posted by third parties.

The petition filed by attorney Charles J. Harder on behalf of San Francisco lawyer Dawn Hassell seeks to show Yelp still has responsibilities despite the law. It claims "Section 230 does not define 'liability.'" Case law provides no consensus that being forced to remove content constitutes liability under the law, he said. Hassell v. Yelp Inc., 18-506.

"Dawn Hassell never sued Yelp," said the founder of Harder LLP in Beverly Hills, known for defending President Donald Trump in Stormy Daniels' defamation case.

"She never asked for damages and she never asked for an injunction against Yelp," he said of Hassell.

Many internet companies fear courts will poke holes in the law that many credit with enabling the fast growth of the free and open internet. Dozens filed amicus briefs supporting Yelp in the state Supreme Court after Hassell won a lower court order against her defamer, which included instructions for Yelp to remove the post.

"The petition is a major longshot," said Brian Willen, a partner with Wilson Sonsini Goodrich & Rosati PC in New York who filed a brief on behalf of Google LLC in that case. "The California Supreme Court got this case exactly right and there's no split, so I'd be quite surprised if cert is granted."

Yelp declined to comment, pointing instead to a statement Deputy General Counsel Aaron Schur made in July that the company fought to protect its First Amendment and due process rights, and to "preserve the integrity of the CDA."

The matter began in 2012 when a woman going by the name Ava Bird sought representation in a personal injury case from Hassell Law Group, a four-attorney firm based in San Francisco. Managing attorney Hassell claims the firm withdrew from representation after Bird did not show up for a scheduled phone meeting and behaved unreliably.

Months later, a one-star review showed up on Yelp calling Hassell "dishonest" and "greedy." It detailed several interactions with the firm which Hassell said were not accurate. The attorney later won a $558,000 defamation case when Bird failed to respond or appear.

Bird never paid. What's more, Harder said, she can't be found, making a mockery of the state Supreme Court's contention that Hassell's remedy is in pursuing further action against her former client.

He added that this is despite Hassell hiring investigators. The address and Social Security number Bird gave proved to be fake. Yet the negative review is periodically moved back up to the top. As of press time, it can still be seen.

In his brief, Harder argues that Yelp's arguments, taken to the extreme, would mean a court could not order a website to remove any kind of third-party content. This can include content posted by people who have died, are posing under fake identities or otherwise immune to standard remedies, he said.

"Under the California Supreme Court's reasoning, state courts cannot enter any order requiring the removal of revenge porn," he wrote.

This contrasts with the responsibilities of brick and mortar companies, he continued. An accident liability judgment, for instance, can be taken to a defendant's bank if they refuse to pay, without the bank itself being considered liable.

"If the trillion-dollar dot-coms are now outside of the power of the court system, we're all in trouble," Harder said.