Businesses are often faced with negative and harmful information, especially on the internet, and counsel is often tasked with acting to remove or neutralize it. A recent California decision makes that more difficult, and indicates that using litigation might not be effective in removing offensive content.
What happens when harsh criticism crosses the line into defamation? A company can sue the poster for defamation and seek money damages, but those are often hard to collect. Can the company obtain an order requiring the website to take down the offending content? The California Supreme Court’s decision in Hassell v. Bird (2018) indicates that in many cases, the answer is no. That court held that although a posting to the popular review website Yelp by an individual had been determined to be defamatory, the federal Communications Decency Act bars any order directed at Yelp requiring it to take down the offending post.
This makes controlling negative content about a company or a business more difficult – websites that allow third-party posters are immune not only from suit but even a takedown order. Many websites will still voluntarily take down offensive content, but the legal ability to force the issue has become harder. Counsel tasked with dealing with such issues should be aware that litigation, and even threats of litigation, are not likely to be effective in removing offensive content.
Yelp maintains a popular website at www.yelp.com which allows consumers to review various businesses, including restaurants, service businesses, and professionals, such as doctors, dentists, and attorneys. Ava Bird posted a very negative review of the Hassell Law firm, owned by Dawn Hassell. Hassell brought suit for defamation; Bird defaulted; the post was deemed defamatory and money damages were assessed. The default judgment enjoined Bird from further publication of the offending post, and ordered Yelp to remove all of Bird’s posts within seven days.
Hassell served Yelp with the default judgment. Yelp intervened in the trial court and moved to set aside the default judgment’s order directed to it. It argued that (a) the Communications Decency Act of 1996, 47 U.S.C. § 230, bars liability against internet service providers for content posted by others and (b) that the order directed to it violated due process, as it had not been given notice and an opportunity to be heard.
After losing in the trial and appellate courts, Yelp sought relief in the California Supreme Court. The majority accepted Yelp’s CDA argument and did not reach the due process argument.
Section 230 of the CDA broadly immunizes internet service providers from liability from postings of third parties. Prior case law dealt primarily with monetary liability. Under traditional defamation law, a party that publishes another’s defamatory content is itself liable. (Think of a newspaper that publishes a defamatory letter to the editor.) In 1996, Congress sought to immunize ISPs from such liability to allow uninhibited postings to the internet, and to incentivize websites to take down what they deemed offensive content without exposing them to liability for what might be left on the sites. The poster of the content, however is not immune and could still be sued for defamation.
The issue that the California Supreme Court grappled with is whether Section 230 also covers injunctive relief incident to a suit against the poster. The majority held that it does – because the point of Section 230 is to allow ISPs like Yelp to decide what content to remove or leave up without fear of liability. An order requiring Yelp to take down a particular posting (or postings) would in effect be treating it as a publisher – precisely the result that Section 230 was meant to avoid.
While the result is good news for Yelp, it is not good news for businesses who may have to deal with negative content on the internet. True, individual posters remain liable for both monetary and injunctive relief, but on a practical level that often means little – the poster usually cannot pay a judgment and is in no position to remove an offensive posting. Websites like Yelp remain free to decide what of third party content to retain on their sites – even if defamatory.