Potential Repercussions for Free Speech in Yelp Defamation Case

LOS ANGELES (CN) – Yelp Inc. argued before the California Supreme Court Tuesday that it should not have to comply with a court order to remove a 1-star review of an attorney written by a disgruntled client because it was not a party to the initial defamation lawsuit between the two.

At oral arguments, the justices weighed what immunity publishers like Yelp are afforded with third-party content, which the company argues is protected by the First Amendment as well as the California Communications Decency Act. The CDA provides certain protections for publishers regarding comments third parties make on their websites.

In 2014, San Francisco-based attorney Dawn Hassell sued former client Ava Bird for defamation, requesting an injunction to remove a negative review that hurt her law firm’s Yelp score.

Bird did not respond in court, and Hassell won a default judgment. The San Francisco County Superior Court found that Bird’s online comments were defamatory – it ordered Yelp to remove Bird’s comment and to ban her from using the site in the future.

The court denied Yelp’s request to have the removal order voided on the grounds that Yelp was not a party to the initial defamation lawsuit.

A California appellate court agreed with the lower court, finding that Yelp was not immune from the order under the CDA.

But Yelp’s attorney Thomas Burke, of Davis Wright Tremaine, argued before the California Supreme Court that if the court does not vacate the order to remove the negative review, more lawsuits will follow to protect free speech across the internet.

Yelp, aggregator of countless dining and shopping experiences, said that it would have argued this immunity if given its day in court.

Hassell’s attorney, Monique Olivier with Duckworth Peters Lebowitz Olivier, said the CDA immunity should not be a get-out-of-jail-free card.

Publishers have been publishing third-party speech long before the internet, Burke argued.

“It doesn’t change by virtue of the internet,” Burke said. He added that if orders to take speech down from the internet become the norm, publishers like Yelp will be corrupted while their First Amendment rights are violated.

Bird has not removed the comment in question, despite the court order, because Yelp’s platform allows users to remove, edit or delete their own comments.

Justice Leondra Kruger asked what would happen if a website refuses a court order to take down content.

Burke said under Section 230 of the CDA, Yelp would be provided immunity from taking down the comment.

“So, Section 230 essentially is a license to continue to publish harmful or defamatory material in perpetuity?” asked Kruger.

Instead of directly answering Kruger’s question, Burke said that if Yelp had notice they would have challenged the speech in court.

Chief Justice Tani Cantil-Sakauye called Yelp the amplified voice of Bird, which brings the matter under the CDA and grants immunity. She asked Olivier if not naming Yelp in the complaint was a strategy to avoid just that.

Olivier admitted that it was in a way, because Yelp could have filed an anti-SLAPP motion and claimed immunity under the CDA.

Anti-SLAPP laws penalize litigation filed to censor content that is not favorable to the plaintiff.

The court now must grapple with Yelp’s liability without its day in court, said Cantil-Sakauye.

Cantil-Sakauye wondered what precedent it set to have a defamation case brought forth that didn’t directly name a company as a party that then resulted in a default judgment ordering the website to take down content.

The order also raises questions about due process.

A rule on an injunction could seem simple on its surface, but could have wider reaching implications, said Cantil-Sakauye.

“Are you asking us to craft a rule with this injunction that lies in only removal orders or injunction in the grand scheme of things?” Cantil-Sakauye asked Olivier. “Because then we’re getting into serious matters that can affect business practices, costs, shareholders and free speech. Yet, we’re never giving the party who is required to act an opportunity to truly be heard.”

Olivier said they’re only looking for an enforcement to remove Bird’s comments, not to set precedent on due process.

But Cantil-Sakauye pointed out that companies receive letters referencing lawsuits all the time. Even the Supreme Court receives those types of letters.

“The judicial branch gets sued all the time,” Cantil-Sakauye said. “My name is always in there. I’m going to tell you I don’t respond to those letters.

“This is what civil procedure has devolved into?” she continued. “I get a letter in the mail that might mention that I could have some liability.”

Google, Twitter, Yahoo, the Electronic Frontier Foundation, and many more wanting to weigh in on the case filed Amicus briefs supporting free speech.

The justices did not say when they would publish their ruling.

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