In 2016, a California appeals court upheld a default judgment order in favor of Dawn Hassell and the Hassell Law Group (“Hassell”) holding defendant Ava Bird liable for defamation and requiring her to remove defamatory reviews she posted about Hassell on Yelp. Yelp appealed the order, but the Court of Appeal held that Yelp could be required to remove the posts.
Yelp appealed to the California Supreme Court raising First Amendment, Communications Decency Act Section 230 (CDA230) and due process arguments in its appeal, which was supported by over a dozen amicus briefs submitted by a who’s who of the internet community.
The Supreme Court reversed in a 4-3 decision that found that the lower court order was barred under CDA230 which provides in relevant parts that
No provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. . . [and] No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section
Hassell argued that it was not seeking to impose any liability on Yelp, but instead as an entity “through” whom Bird acts, it was obligated to carry out the injunction on her behalf. The Supreme Court’s plurality opinion read CDA230 broadly and rejected this argument finding that an injunction is an imposition of liability that would undermine the intent of CDA230.
An injunction like the removal order plaintiffs obtained can impose substantial burdens on an Internet intermediary. Even if it would be mechanically simple to implement such an order, compliance still could interfere with and undermine the viability of an online platform. (See Noah v. AOL Time Warner, Inc., supra, 261 F.Supp.2d at p. 540 [“in some circumstances injunctive relief will be at least as burdensome to the service provider as damages, and is typically more intrusive”].) Furthermore, as this case illustrates, a seemingly straightforward removal order can generate substantial litigation over matters such as its validity or scope, or the manner in which it is implemented. (See Barrett, supra, 40 Cal.4th at p. 57.) Section 230 allows these litigation burdens to be imposed upon the originators of online speech. But the unique position of Internet intermediaries convinced Congress to spare republishers of online content, in a situation such as the one here, from this sort of ongoing entanglement with the courts.
The Court noted, however, that Hassell could still petition the court to hold Bird in contempt.
The dissenters rejected the view that ordering Yelp to review defamatory posts violated CDA230. Justice Liu argued:
No one has burdened Yelp with defending against liability for potentially defamatory posts. 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. The trial court ruled that Bird had defamed Hassell on Yelp, and it directed Yelp to help effectuate the remedy. Yelp’s conduct as a speaker or publisher was never at issue in Hassell’s lawsuit, and the trial court imposed no liability on Yelp for such conduct. Instead, the trial court enjoined Yelp as part of the remedy for Bird’s tortious conduct toward Hassell.