California Court Not Yet Ready To Undermine The Entire Internet; Rules Yelp Can't Be Forced To Delete A Review

from the Section-230-not-quite-dead-yet dept

In 2016, Techdirt wrote about a troubling case, Hassell v. Bird, in which a court issued an injunction telling Yelp to delete a review after a lawyer won a default judgment in a defamation case. The court ignored that Section 230 of the CDA says that platforms like Yelp cannot be held liable (and thus can’t be legally mandated) to remove content of third parties, and didn’t seem to care that Yelp wasn’t even a party in the case.

The good news is that Yelp won its appeal of the injunction. The bad news, though, is that it barely won, and the relatively elegant, cogent opinion finding that Section 230 prevented the injunction is tempered in its effect by only being a plurality decision: victorious in its ultimate holding only because of a concurring vote on different grounds that provided a less-than-full-throated endorsement of the plurality’s conclusion.

This case began when someone, who the plaintiff Hassell believes to be Bird, had posted a critical review of the Hassell law firm on Yelp that Hassell claimed to be defamatory. Hassell sued Bird and ended up with a default judgment agreeing that it was defamatory. Hassell also got the trial court in San Francisco to issue an injunction ordering Yelp to delete the offending posts. Yelp appealed the injunction on several grounds, including that it never had a chance to be heard by the court before it issued a judgment against it, and because Section 230 should have barred it. After losing at the California Court of Appeals, the California Supreme Court agreed to take up its case, and this week it issued its ruling.

The plurality opinion, which garnered three votes, found it sufficient to invalidate the injunction entirely on Section 230 grounds without having to reach any due process consideration. It cited plenty of prior cases to support its Section 230 analysis, but spent some time discussing the holdings in three in particular: Zeran v. AOL, Kathleen R. v. City of Livermore, and Barrett v. Rosenthal [p. 14-20]. Zeran was an early case construing Section 230 that set forth why it was so important for speech and ecommerce that platforms have this statutory protection for liability arising from their users’ content. Barrett v. Rosenthal was a subsequent California Supreme Court case, which similarly construed it. And Kathleen R. was a case where a California Court found that Section 230 precluded injunction relief. These and other cases underpinned the plurality’s opinion.

It also made several other points in support of its Section 230 finding. One was the observation that if Section 230 couldn’t prevent the non-party injunction against Yelp it would just prompt litigants to game the system by not even bothering trying to name platforms as defendants, since they’d have better luck getting injunctions against them if they did NOT try to sue them than if they did.

The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant. Put another way, we must decide whether plaintiffs? litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no. [p. 22]

And part of the reason the answer is no, is that Section 230 was never intended to only limit damages liability against a platform; it also was meant to prevent injunctions as well. [p. 26-27].

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. [p. 28]

And it had to prevent injunctions, in order for platforms and the online speech they facilitate to be protected:

Perhaps the dissenters? greatest error is that they fail to fully grasp how plaintiffs? maneuver, if accepted, could subvert a statutory scheme intended to promote online discourse and industry self-regulation. What plaintiffs did in attempting to deprive Yelp of immunity was creative, but it was not difficult. If plaintiffs? approach were recognized as legitimate, in the future other plaintiffs could be expected to file lawsuits pressing a broad array of demands for injunctive relief against compliant or default-prone original sources of allegedly tortious online content. Injunctions entered incident to the entry of judgments in these cases then would be interposed against providers or users of interactive computer services who could not be sued directly, due to section 230 immunity. As evinced by the injunction sought in Kathleen R., supra, 87 Cal.App.4th 684, which demanded nothing less than control over what local library patrons could view on the Internet (id., at p. 691), the extension of injunctions to these otherwise immunized nonparties would be particularly conducive to stifling, skewing, or otherwise manipulating online discourse ? and in ways that go far beyond the deletion of libelous material from the Internet. Congress did not intend this result, any more than it intended that Internet intermediaries be bankrupted by damages imposed through lawsuits attacking what are, at their core, only decisions regarding the publication of third party content. [p. 30-21]

Unfortunately the rest of the Court was not as amenable to the plurality’s application of Section 230 as a defense against the injunction. Even the concurrence by Justice Kruger, which provided the fourth vote in favor of overturning the injunction, did so, as Eric Goldman observed, with potentially some qualification of the Section 230 analysis (“I express no view on how section 230 might apply to a different request for injunctive relief based on different justifications.”). [concurrence p.1]. But both the concurrence and the plurality recognized that there were problems with trying to hold a non-party platform like Yelp responsible for complying with the injunction to take down content that had also been directed to the defendant Bird. For the plurality it was a straightforward violation of Section 230.

[I]t is also true that as a general rule, when an injunction has been obtained, certain nonparties may be required to comply with its terms. But this principle does not supplant the inquiry that section 230(c)(1) requires. Parties and nonparties alike may have the responsibility to comply with court orders, including injunctions. But an order that treats an Internet intermediary ?as the publisher or speaker of any information provided by another information content provider? nevertheless falls within the parameters of section 230(c)(1). In substance, Yelp is being held to account for nothing more than its ongoing decision to publish the challenged reviews. Despite plaintiffs? generic description of the obligation they would impose on Yelp, in this case this duty is squarely derived from ?the mere existence of the very relationship that Congress immunized from suit.? [p. 24]

For the concurrence the platform’s relationship with the defendant was too attenuated and not the sort of agency relationship where it may be proper to hold a third party responsible for complying with an injunction on another.

Plaintiffs, as well as [dissenting] Justice Liu, argue that the injunction naming Yelp is valid because it merely makes explicit that Yelp, as an entity ?through? whom Bird acts, is obligated to carry out the injunction on her behalf. But the trial court made no finding that Bird acts, or has ever acted, ?through? Yelp in the sense relevant under Berger, nor does the record contain any such indication; we have no facts before us to suggest that Yelp is Bird?s ?agent? or ?servant.? It is true and undisputed, as plaintiffs and Justice Liu emphasize, that Bird?s statements were posted on Yelp?s website with Yelp?s permission. And as a practical matter, Yelp has the technological ability to remove the reviews from the site. These facts might well add up (at least absent section 230) to a good argument for filing suit against Yelp and seeking an injunctive remedy in the ordinary course of litigation. But the question presented here is whether these facts establish the sort of legal identity between Bird and Yelp that would justify binding Yelp, as a nonparty, to the outcome of litigation in which it had no meaningful opportunity to participate. Without more, I do not see how they could. [concurrence p. 7]

The plurality also rejected the theory raised by the trial court and pushed by the dissent that the platform had somehow “aided and abetted” the defamatory speech. If this argument could prevail, Section 230 would become a nullity, since every platform enables user expression, and not all that expression is necessarily entirely legal.

In his dissent, Justice Cu?llar argues that even if the injunction cannot on its face command Yelp to remove the reviews, the removal order nevertheless could run to Yelp through Bird under an aiding and abetting theory premised on conduct that remains inherently that of a publisher. (See dis. opn. of Cu?llar, J., post, at pp. 3, 20-22, 34-37.) We disagree. As applied to such behavior, Justice Cu?llar?s approach would simply substitute one end-run around section 230 immunity for another. [p. 25]

The dissenting opinions, on the other hand, were very focused on the plight of the plaintiff who had apparently been injured by these purportedly defamatory posts. (I say “purportedly,” because although the Supreme Court decision does not spend much time on this issue, it’s worth noting that the conclusion of the posts’ defamatory nature was drawn from an ex parte default proceeding at the trial court where no defense was supplied. It is certainly easier for a court to accept a plaintiff’s characterization of language as defamatory when there is no one present ? even Yelp was left out ? to show that it is not.) As we’ve seen in cases like Garcia v. Google, the operation of Section 230 can make it difficult for a legitimately aggrieved plaintiff to obtain a remedy against someone who has defamed them. But it isn’t necessarily impossible, and the plurality reminded everyone that Hassell was not without any recourse:

On this last point, we observe that plaintiffs still have powerful, if uninvoked, remedies available to them. Our decision today leaves plaintiffs? judgment intact insofar as it imposes obligations on Bird. Even though neither plaintiffs nor Bird can force Yelp to remove the challenged reviews, the judgment requires Bird to undertake, at a minimum, reasonable efforts to secure the removal of her posts. A failure to comply with a lawful court order is a form of civil contempt (Code Civ. Proc., ?1209, subd. (a)(5)), the consequences of which can include imprisonment (see In re Young (1995) 9 Cal.4th 1052, 1054). Much of the dissents? rhetoric regarding the perceived injustice of today?s decision assumes that plaintiffs? remaining remedies will be ineffective. One might more readily conclude that the prospect of contempt sanctions would resonate with a party who, although not appearing below, has now taken the step of filing an amicus curiae brief with this court. [p. 32]

Perhaps this is the most important passage in the whole opinion. It’s become really popular especially as of late to try to make platforms responsible for everything their users do. It’s good to have courts remind us that it’s the people who do the things who really should be held accountable instead.

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Comments on “California Court Not Yet Ready To Undermine The Entire Internet; Rules Yelp Can't Be Forced To Delete A Review”

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Anonymous Coward says:

Legislation needed

It shouldn’t be too surprising that the California Supreme Court failed to firmly smack down the lower courts’ propensity to decree laws of general applicability by means of ‘non-party injunctions’.

But what is a a ‘non-party’ injunction, if it does not purport to be law of general applicability? Mere brutem fulmen? Noise for in terrorem effect? Or a credible threat of contempt proceedings?

The legislature should step to remind the courts of its exclusive power to enact laws of general applicability.

Ninja (profile) says:

It’s tragically amusing how people seem to throw all logic through the window when you add “on the internet” to whatever regular activity. I mean, you don’t see people coming after Taurus because somebody used their guns to commit some crime or Ford and InBev because somebody caused an accident while speeding drunken. Because you go after the individual behind the actions, not the providers of the tools. Even if such providers know their products could be used for criminal actions they can’t possibly babysit every single customer to make sure they are using them responsibly.

And then in this case you have the speech protections added. Even if, say, McDonnalds decided the guy could place a wooden box in their property and talk about his opinion I’m fairly sure they’d be going after the guy and not after McDonnalds. Note I’m saying they are letting people speak their mind, not endorsing it. But because it’s the internet then ZOMG LAWSUIT against the platform, not the one allegedly defaming.

Hopefully this will change as people get more internet-savvy as the new generations come.

Anonymous Coward says:

Re: Re:

… because it’s the internet then ZOMG LAWSUIT against the platform, not the one allegedly defaming.

That’s not the case here. The lawsuit is captioned Hassell v Bird — because the lawsuit was NOT brought against Yelp.

The first paragraph of the California Supreme Court opinion makes the situation clear.

Yelp was not named as a defendant in the underlying lawsuit, brought by plaintiffs Dawn Hassell and the Hassell Law Group, and did not participate in the judicial proceedings that led to the default judgment. Instead, Yelp became involved in this litigation only after being served with a copy of the aforementioned judgment and order.

“Yelp was not named as a defendant in the underlying lawsuit.” Yet despite that, the lower court, without any notice to Yelp, just went and ordered Yelp to take action. The San Francisco Superior Court ordered— is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order.

The due process problem in this San Francisco Superior Court order is —or should be— glaringly obvious. Yelp had no notice nor opportunity to say anything before the lower court started issuing orders to Yelp. Yelp wasn’t a defendant. So where does the lower court get the authority to just issue orders like that to Yelp?

Ninja (profile) says:

Re: Re: Re:

Oops, I failed at communications. I actually understood Yelp isn’t the receiving end of the lawsuit but I failed to mention it. My idea is that Yelp didn’t even had the chance to defend exactly because of this “go after the platform” mindset. I thought it but didn’t write so it came out as a semi-related rant. My apologies, you are absolutely right.

Anonymous Coward says:

Re: Re:

… because it’s the internet then ZOMG LAWSUIT against the platform, not the one allegedly defaming.

If the lawsuit in this case had been brought against the platform, Yelp, then Hassell v Bird wouldn’t be so much of a procedural mess.

Even the plaintiff, though, understood that a lawsuit directly against Yelp, with a demand for Yelp to censor user content, would’ve run straight into § 230’s bar. That’s why the plaintiff asked the lower court to issue an injunction against Yelp without any ‘formality’ of a lawsuit against Yelp.

Plaintiff’s position apparently was, “Oh, yeah, sure, judge. You’ve got the authority to order around random strangers on the street. Go ahead, issue orders. The courts do that all the time!“.

John Smith says:

Section 230 undermines truth, ruins reputations, and costs money to the government. It also makes libel a fact of life for too many, with most of the damage inflicted by the search engines. The “polluter” in this case is the search engine, which can be weaponized to build a completely fake “dossier” on someone.

The mass-shooter at the Capital Gazette got a woman fired by lying about her to her employer, btw.

Ninja (profile) says:

Re: Re:

“The mass-shooter at the Capital Gazette got a woman fired by lying about her to her employer, btw.”

Which is very different from opining about her, no?

Section 230 protects platforms from people like you that would love to extract easy money from them instead of going after the perceived libel and lose when it’s clear it’s protected speech (which seems to be the case). And as the guy up there properly noted Yelp isn’t even the receiving end of the lawsuit and it has been denied due process. But yeah, you illustrate quite well my partially incoherent rant.

Anonymous Coward says:

Re: Re: Re:

… when it’s clear it’s protected speech (which seems to be the case).

This is a little more complicated than that.

The defendant, Bird, didn’t appear in San Francisco Superior Court. She defaulted. That lower court, therefore, accepted plaintiff’s argument that the speech at issue was defamatory — and unprotected.

The intermediate appellate court, the California Court of Appeal, refused to disturb the finality of the Superior Court’s determination.

Thus, this court [the California Court of Appeal] will not address arguments regarding the validity of the Bird judgment itself including, for example, Yelp’s theory regarding perceived defects in Hassell’s complaint against Bird, and its contention that Hassell failed to prove their defamation claim against Bird.

(Footnote omitted.)

Nevertheless, even the Court of Appeal recognized that the Superior Court’s had ordered Yelp to remove future speech, which is presumptively protected. The Superior Court had ordered— is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdseye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order.

The Court of Appeals disposed of this manifest prior restraint on future speech by ordering—

[T]his case is remanded to the trial court with the direction to narrow the terms of the removal order in the January 2014 judgment by limiting it to the specific defamatory statements that were listed on exhibit A of that judgment.

In the California Supreme Court’s plurality opinion, in footnote 6, on pp.8-9, Chief Justice Cantil-Sakauye wrote—

We likewise have no occasion to opine on whether the challenged reviews are in fact defamatory, in whole or in part. Our analysis assumes the correctness of the superior court’s determination on this point.

But in this footnote, the Supreme Court isn’t considering the prior restraint on future speech originally ordered by the Superior Court.

Clearly, and unmistakably, an order to censor “any subsequent comments of these reviewers” is a presumptively unconstitutional order.

The Wanderer (profile) says:

Re: Re: Re: Re:

Given that it would (theoretically) be possible for those users to post comments more than 7 days after the date of the order (at which point it would be impossible for Yelp to comply), I suspect that what the court meant by that may have been something closer to "remove any reviews posted by these reviewers which are attached here as Exhibit A, and also remove any other comments which those same reviewers have posted in the interim, and do it within 7 business days of the date of the order".

I.e., that this does not apply to any comments posted in the future, only to ones posted in between the ones given and the date of the order. (Presumably this would also be accompanied by an order which separately binds the commenter against later posting anything corresponding to what the order has called defamatory.)

That would be less clearly unconstitutional, and seems compatible with the given phrasing. Unfortunately, it’s also not clearly the (only) correct interpretation of that phrasing; it could also be interpreted in the way you have done, with the addition of "block these reviewers from posting any further comments at any time in the future". That means that, even if that is what the court intended, the court failed to clearly express its intent in its order.

(The need to avoid this sort of misinterpretability is part of why legalese exists, and in fact, is sometimes necessary.)

Anonymous Coward says:

Re: Re: Re:2 Re:

… it could also be interpreted in the way you have done, with the addition of "block these reviewers from posting any further comments at any time in the future".

Both the California Supreme Court and the Court of Appeals interpreted the order consistently with footnote 7 on p.11 of the Supreme Court opinion

The Court of Appeal thus affirmed the superior court’s order denying Yelp’s motion to set aside and vacate the judgment, albeit with instructions to the superior court to modify the order on remand so that it compelled only the removal of the three challenged reviews.[Note 7]

[Note 7] This modification owed to the Court of Appeal’s conclusion that “to the extent the trial court additionally ordered Yelp to remove subsequent comments that Bird or anyone else might post, the removal order is an overbroad prior restraint on speech.”

From the Court of Appeals opinion

[T]o the extent the trial court additionally ordered Yelp to remove subsequent comments that Bird or anyone else might post, the removal order is an overbroad prior restraint on speech.

“[T]o the extent the trial court additionally ordered Yelp to remove subsequent comments…”

If “subsequent comments” mean comments posted at any time after the order issues, then the Superior Court cannot have considered those “subsequent comments” in the context they occur in. Not adequately — not at all.

The Wanderer (profile) says:

Re: Re: Re:3 Re:

I’m… not sure I understand your point?

My point is precisely that – going only by the wording and phrasing of what you quoted – "subsequent comments" may have meant "comments posted prior to the order which are subsequent to the ones attached as Exhibit A", not "comments posted subsequent to the order".

That would still have been overbroad, unless the Court had (and had properly considered) evidence to indicate that the thus-additionally-covered comments were also within the bounds of what would be appropriate to restrict in that context (which I know of no indication that it did).

But it would not have been as overbroad, or as obviously so, as a would have been a requirement to remove all comments posted by those users at any time in the future.

Anonymous Coward says:

Re: Re: Re:4 Re:

I’m… not sure I understand your point?

I understand what you’re aiming at. But in that first of two responsive comments, I was pointing out that both the California Supreme Court and the Court of Appeals seem to agree with my reading of the Superior Court’s order.

The Court of Appeals qualified its statement with, ““[T]o the extent”. The Supreme Court only repeated the Court of Appeals qualified language. So, they were cautious in their interpretative statements.

But look at what both courts were saying: They read it the same way I did.

Anonymous Coward says:

Re: Re: Re:2 Re:

… also remove any other comments which those same reviewers have posted in the interim…

Iow, commit viewpoint discrimination by censoring particular named posters — broadly condemning all their comments in some time period — for no reason other than that the court has decreed they’re bad people who simply mustn’t speak publicly in some specific forum.

How is this “less clearly unconstitutional” again?

Even “content-neutral time, place or manner” regulation must be content-neutral. Viewpoint discrimination fails that test. Discriminating against people’s speech by their name discriminates against their individual viewpoint.

The Wanderer (profile) says:

Re: Re: Re:3 Re:

Because prior restraint of (any and all) speech is more clearly unconstitutional than any restraint on (particular) already-made speech, and "remove everything posted to date" is not prior restraint of speech.

I didn’t and don’t say that it wouldn’t be unconstitutional, or even clearly so – just that it would be less so than what the interpretation you were working from would be.

Anonymous Coward says:

Re: Re: Re:4 Re:

Because prior restraint of (any and all) speech is more clearly unconstitutional than any restraint on (particular) already-made speech, and "remove everything posted to date" is not prior restraint of speech.

“Remove everything posted to date” is indeed a prior restraint if the order occurs in advance of a final judgment on the merits of the speech at issue.

If we go back past Near, through Blackstone’s previous restraints, to the Licensing Act of 1662, and the various Star Chamber decrees, then the core contest is over whether a prohibition on the press runs by default until a particular publication is licensed, or whether the press is free until a particular publication is finally adjudged unlawful.

The old English licensors didn’t read an author’s manuscript for approval before the author had written it. The question was whether, once the author had written, it could then be printed and published.

Now, if the Superior Court made final judgement over an entire class of unseen publications — holding them unlawful based on nothing more than the identity of the author — then I can appreciate your technical point that it’s technically “not a prior restraint”. But I hope you can appreciate my viewpoint that that amounts to overly technical hair-splitting.

Anonymous Coward says:

Re: Re: Re:5 Re:

… that amounts to overly technical hair-splitting.

A simpler way to state this: If the base default is a free press, then practically, it matters not a whit’s worth of difference whether a publication is wrongfully condemned by process lacking final judgment, or wrongfully condemned by manifestly deficient process of final judgment.

In either case, the “final judgment” ought to be hastily overturned and set aside. In a system where the default is a free press.

Anonymous Coward says:

Only one problem with this.

It is completely 100% false news and hyperbola.

What would happen is that Social Media would cease to exist. The rest of the internet would remain the same.

The internet existed in a much more civilized form long before social media sites like Facebook existed or even Google existed.

Given the poor quality of search results form Google the removal of Google from the internet would most likely be a benefit to everybody as it would cause a much better search service to be developed.

And as far as Facebook, the best thing for consumers would be to wise up to what Facebook is and prosecute and confine perpetrators of that sort of spy and command and control site to very long vacations in the ultimate command and control environment of the strictest form where the sun does not shine.

A proper working internet is NOT a Stasi command and control system.

Ninja (profile) says:

Re: Re:

Except Google and Facebook aren’t the internet of course. And it’s not social media that would take a major hit but also any platform that allows user generated content. Hardly an hyperbole but luckily we haven’t been able to test whether it is or not. And I hope we don’t get to test as it would be very destructive for everybody.

Also, check the meaning of “false news”. It doesn’t mean “stuff I don’t agree with”.

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