Is Any Press Really Good Press? California Supreme Court Rules on Fate of Defamatory Yelp Reviews

In a decision that differentiated between online speaker and content channel, the California Supreme Court recently held that popular online review site Yelp.com cannot be ordered to remove defamatory posts.  The court’s opinion, issued July 2, 2018, states an order issued by the San Francisco Superior Court, directing Yelp to remove concededly defamatory reviews on its website, improperly treated Yelp as “the publisher or speaker of … information provided by another information content provider” under the Communications Decency Act of 1996, 47 U.S.C. Section 230 (Section 230), which bars treatment of interactive computer services as the publisher or speaker of third party content.

The dispute arose when Dawn Hassell of Hassell Law Group sued her former client, Ava Bird, for posting several allegedly defamatory reviews of Hassell’s services on Yelp.com.  Yelp is an online business directory for local businesses such as restaurants, salons, doctors and more.  Yelp users can leave feedback related to the services and experience that a business provides.  Hassell moved for default judgment after Bird did not appear in the case.  The court entered judgment in favor of Hassell and ordered Yelp to remove the reviews.  Yelp filed a motion to set aside and vacate the judgment, arguing that the directive to remove the reviews was barred by Section 230 and violated Yelp’s due process rights because Yelp was not a party to the action.  The superior court denied Yelp’s motion and the appellate court affirmed.  Yelp appealed to the California Supreme Court.

The California Supreme Court analyzed Section 230(c)(1) of the Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  The court observed that plaintiff made the tactical decision not to name Yelp as a defendant, but the action ultimately treated Yelp as the publisher or speaker of the defamatory review under Section 230(c)(1).  Although nonparties to an action may have the responsibility to comply with an injunction, the responsibility that this order would impose on Yelp clashes with Yelp’s role as an online platform for third party reviews.  According to the court, such an order imposes a “substantial burden[s] on an Internet intermediary,” and compliance could “interfere with and undermine the viability of an online platform.”  The court ruled that the order to remove the reviews could not be extended to Yelp because Section 230 protects Yelp’s act of posting of the review.  Hassell, according to the court, is still free to pursue Bird for violation of the injunction. 

This ruling does leave unanswered questions about the role of online intermediaries.  For example, what set of circumstances would have placed Yelp outside the protection of Section 230?  The individual facts of future cases will likely serve to flesh out such distinctions. 

Many free speech advocates, news organizations and similar online services supported Yelp’s position.  But opponents of a hands-off approach believe allowing Internet defamation in any form to remain online could create an environment leading to pervasive abuse. 

Given California’s place in the nation as a tech giant, this decision wields great influence on the state of regulation of the Internet.  For now, online publishers of content provided by third parties can breathe a sigh of relief.