State supreme court says Yelp not required to take down user post

In a win for companies that host user-generated content, California’s highest court issued a 4-3 decision this week in Hassel v. Bird, affirming Yelp is not liable for refusing to take down a post which was deemed defamatory.

The underlying dispute arose after an angry client, Ava Bird, wrote a scathing review of a law firm and attorney Dawn Hassell. Hassell sued Bird for defamation and prevailed (through a default judgement) against her. The court ordered Bird to take down the offending post. Hassell then went to Yelp and demanded that it remove the post, arguing that the order against Bird also extended to Yelp.

Yelp refused, and the case proceeded to determine whether the court could order Yelp to take the post down, and whether section 230 immunity protected Yelp from liability for refusing to do so. The Court of Appeal rejected Yelp’s arguments, but the Supreme Court reversed.

Section 230 of the Communications Decency Act of 1996 provides strong protections against liability for internet services providers, and provides that “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” (§ 230(e)(3)).

In overturning the Court of Appeal, which denied Yelp section 230 protection, the majority ruled that the Yelp’s section 230 defense won the day. Chief Justice Cantil-Sakauye wrote, “Even as we conclude that Yelp is entitled to immunity, we echo the holding in Barrett, emphasizing that our reasoning and result do not connote a lack of sympathy for those who may have been defamed on the Internet. Nevertheless, on this record it is clear that plaintiffs’ legal remedies lie solely against Bird, and cannot extend-even through an injunction-to Yelp.”

The fourth vote favoring Yelp came from Justice Kruger, who issued a concurring opinion. She reached back to the words of Judge Learned Hand to argue that, under fundamental due process principles, Yelp could not be subject to an order when it was not a party to the case: “[N]o court can make a decree which will bind anyone but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen, and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court.

Justice Goodwin Liu dissented, writing, “The Court of Appeal got it right: Yelp has no statutory immunity from the removal order, and the removal order directed at Yelp does not violate due process of law. I would affirm the judgment of the Court of Appeal.”

Justice Cuellar and Justice Stewart, sitting by designation, also dissented.
The San Francisco Chronicle reported that lawyers for Hassell and her firm were considering an appeal to the U.S. Supreme Court.

The case was deftly litigated for Yelp by Tom Burke, Rochelle Wilcox, and Deborah Adler of Davis Wright Tremaine.