internet law

Review Website Cannot Be Ordered to Take Down Defamatory Posting

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.

Making “Terms of Use” Stick

A recent Second Circuit decision (Meyer v. Uber Technologies (2017)) provides important guidance on ensuring that Terms of Use contained in websites and apps bind their users as contractual agreements. Terms of Use that may be particularly important for companies may include arbitration and no-class-action clauses.

The decision is notable because it held the terms to be binding, even though they were not visible during the registration process, though they could be accessed by a hyperlink.

Companies are well advised to have legal counsel review the layout and registration process on their websites and apps that are intended to bind users to such terms, and ensure that best practices are followed to maximize enforceability. What is critical is that “the layout and language of the site give the user reasonable notice that a click will manifest assent to an agreement.”

Key lessons that can be gleaned from the decision include:

  • require affirmative assent to the terms of use;

  • there should be a clear, easily readable statement positioned next to the registration (or assent) button indicating agreement to the terms; and

  • if the terms are on a separate page connected with a hyperlink, the hyperlink label should be clearly demarcated by color and underline.

More pointers are outlined in our detailed discussion of the case