Member Article

The Communications Decency Act (CDA)—the law Congress enacted in 1996 and confirmed this past year to shield online publishers from responsibility for the speech of others—gives internet platforms the right to publish the ideas and opinions of third-party users without being held liable for that content or being forced to remove it.[1] In the closely watched case ofHassell v. Bird, earlier this week the California Supreme Court, in a split 4-3 decision, applied the CDA’s immunity to on-line platforms, namely the ever-popular Yelp review website, which allows people to freely share their consumer thoughts on businesses, small and large. The court reversed a lower court’s order requiring Yelp to take down an allegedly defamatory review of a business posted by a third party (a patron of that business), thus joining the handful of courts across the country which have addressed the issue and, like the court here, afforded websites broad immunity, barring claims to hold websites responsible for content provided by their users. Of importance is the fact that Yelp was not a party to the lawsuit.

Concerned with silencing on-line speech, the court’s decision gives internet publishers a little, yet not total, peace of mind that they cannot be ordered by a California state court to remove third-party speech from their on-line platforms. While consumers still may be directly sued for defamation or trade libel, those who choose to express themselves through such web-based platforms will have their speech on such platforms subject to less court-ordered removal or censorship directed to the platforms themselves, as opposed to the consumers. The court’s decision, however, does not prevent on-line publishers from removing content from their platforms at their own discretion—for example, speech that they deem to be defamatory, misleading, or otherwise inappropriate. Yelp’s own Terms of Service prohibit the posting of defamatory content, but Yelp also observes that it carefully studies third-parties’ posts before deciding to remove consumer reviews, and Yelp allows any third party unhindered access to remove any of her or his own consumer reviews.

It is important to observe that the court’s decision is only apluralitydecision, consisting of the court’s more conservative wing, authored by Chief Justice Cantil-Sakauye, joined by Associate Justices Chin and Corrigan, and teamed with a concurring opinion by Associate Justice Kruger, who joined only in the result, but not in the plurality’s rationale. The concurring opinion noted that the remedy requiring Yelp to remove the post was not appropriate because Yelp was not a party to the lawsuit. Spirited dissenting opinions by the other Justices (one even authored by a lower court jurist, sitting by designation due to the single vacancy on the seven-member court) complained that the target of the alleged defamatory speech was being unfairly deprived of an effective remedy against defamation, or that the court should have remanded the matter to allow the trial court to make better findings in support of an injunction against Yelp.

In other words, it cannot be said with any level of certainty that the issue has been resolved in California. A majority of the court could not agree on a stated rationale for the court’s decision, leaving the door open for (1) businesses and other similarly-interested actors to argue for the removal of third-party content on internet platforms by suing those platforms directly and (2) California courts to hold operators and/or owners of those platforms directly liable for posting such actionable third-party speech. Additionally, it should be noted that California Governor Jerry Brown has yet to nominate and fill the vacant seventh seat on the California Supreme Court. Depending on the views of that future member of the court coupled with Justice Kruger’s unwillingness to join the plurality’s Section 230 rationale (thereby allowing Her Honor to keep an open mind on the subject), the court’s plurality decision in this case could rather easily be overridden by a future majority decision that abides by the views of the three dissenting Justices. Because the court’s decision here does not part ways with the decisions of other courts throughout the country, it is unlikely that the Supreme Court of the United States will grant review of the case, if review is sought. According to recent news stories, the Yelp reviewer is considering seeking higher review.

The Takeaway?

With online consumer reviews taking on an increasingly important role in shaping companies’ reputations, many businesses are turning to the courts for relief, but only few are going after the on-line publishers; realizing the limitations posed by the CDA, most are suing only the actual speakers. The California Supreme Court’s decision, at least for the time being, gives further support to that avenue for relief against the speaker, and not the on-line platform where such defamatory speech is posted.

Once the speech is adjudicated as being defamatory, a court may order the defaming party to take down his or her post or face contempt, or impose a number of other coercive and punitive judicial remedies—such as to grant the business access to execute on the reviewer’s Yelp account, enabling the defamed business or business owner to step into the shoes of the third party in managing the Yelp account, without directly involving the web-based publisher or platform operator in the suit. If Yelp is presented with a court decision stating that the third-party post in question has been deemed defamatory, Yelp will remove the post, according to its own policies and protocol.

Other internet platform providers, such as Facebook, Google, and Twitter, appear to operate under similar internal guidelines. And the question remains whether such non-parties (whether it be Yelp, Google, Twitter, or whomever) could be liable under a contemnor theory. The plurality decision leaves the door open for this possibility, as well, stating: “nonparties may be barred from acting on behalf of, or in concert with, a defendant in violating an injunction” and such an injunction must be “made effectual against all through whom the enjoined party may act, and to prevent the prohibited action by persons acting in concert with or in support of the claim of the enjoined party, who are in fact his aiders and abetters.” Translation: the plurality of the court is, at least tacitly, endorsing judicial punishment of a nonparty web-based publisher or platform operator who hinders the third-party reviewer from removing his or her defamatory post.