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.