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A Case for the Internet: Hassell v. Bird

The Supreme Court of California today ruled in Yelp’s favor in Hassell v. Bird, a case that had threatened the rights of online platforms that allow people to freely share their thoughts and the billions of people that do so.

In 2014, attorney Dawn Hassell sued her former client, Ava Bird, for allegedly defaming her in a pair of Yelp reviews. Ms. Bird failed to show up (apparently she was never served with court papers) and so a judge ruled in favor of Ms. Hassell by default. Along with a judgment against Ms. Bird, the court ordered Yelp — which was not a defendant in the case and was not informed about the hearing — to remove two reviews from Ms. Bird’s account and another review from a different account that the plaintiff asserted (without proof) was Ms. Bird’s. The court provided no explanations in its order of why the reviews were defamatory, yet enjoined Yelp from publishing any reviews from these accounts in the future. Yelp challenged this decision, but rather than protect Yelp’s fundamental right to publish consumer commentary, the court upheld the order to remove the reviews and bar future reviews.

When Yelp appealed, the Court of Appeal doubled down on the lower court’s decision, ruling that Yelp was not a publisher at all, had no right to a hearing in connection with an order to remove reviews, and was not protected by the Communications Decency Act (CDA), the law Congress passed to protect online publishers to shield them them from responsibility for the speech of others. The CDA gives online platforms the right to publish (or not publish) the ideas and opinions of users without the threat of being held liable for that content or forced to remove it. This allows the internet to flourish. The Court of Appeal held that by avoiding suing Yelp directly (to Yelp, a violation of due process) also allowed the plaintiff to sidestep the CDA’s broad immunity.

Yelp fought this case all the way to the Supreme Court of California to protect its First Amendment right as a publisher, due process right to a hearing in connection with any order that targets speech on Yelp’s website, and to preserve the integrity of the CDA. But Yelp’s publishing rights are not the only rights at issue, as the Court of Appeal’s reasoning puts at risk any journalist’s work — whether displayed online or not — that uses quotes or information from someone else. Also at risk are the separate speech rights of individuals that use online resources, such as those that post comments on news articles or consumers who choose to describe their business experiences online, which may be squelched through manipulations of our judicial system. This includes court orders obtained through fraud or default proceedings, as in this case, where less stringent standards are applied. Yelp’s case was supported by dozens of individuals and organizations, including non-profits like the ACLU, EFF, Public Citizen, media organizations, law professors, and many other similarly situated online services, such as Twitter, Reddit, Pinterest, Facebook, and Snap Inc.

Luckily for those of us who value sharing one another’s opinions and experiences, the Supreme Court of California has now reversed the Court of Appeals, specifically holding that the CDA prevents the order against Yelp here and that plaintiff’s machinations cannot overcome CDA immunity. As the Court succinctly stated, “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.”

With this decision, online publishers in California can be assured that they cannot be lawfully forced to remove third-party speech through enterprising abuses of the legal system, and those of us that use such platforms to express ourselves cannot be easily silenced through such tactics either. Of course, Yelp has no interest in publishing defamation, which is not helpful to consumers, and our Terms of Service prohibit the posting of defamatory content. But defamation is more than just a label, and so Yelp studies court orders to ensure they are valid and actually make a showing that defamation has occurred, before Yelp removes reviewer content. Any reviewer on Yelp can also remove any of their own reviews.

This case, however, highlights other simple facts. The Hassell Law Group, which has always been a highly-rated business on Yelp and currently maintains five stars, has spent many years in the court system (and endured the resulting Streisand Effect) in an effort to force Yelp to silence a pair of outlier reviews. As we have observed before, litigation is never a good substitute for customer service and responsiveness, and had the law firm avoided the courtrooms and moved on, it would have saved time and money, and been able to focus more on the cases that truly matter the most — those of its clients.