SAN FRANCISCO (CN) – In a case that raised serious questions about free speech on the internet, a deeply divided California Supreme Court ruled Monday judges can’t order Yelp to remove 1-star reviews since it’s not the “publisher or speaker” of the content.
In 2014, San Francisco-based attorney Dawn Hassell sued former client Ava Bird on defamation claims and demanded an injunction to remove a negative review that hurt her law firm’s Yelp score.
Bird did not respond to the lawsuit, resulting in a default judgment for Hassell. A San Francisco County Superior Court judge ruled Bird’s online comments were defamatory and ordered Yelp to remove the comment and ban Bird from the website.
Yelp, however, was not a party to Hassell’s lawsuit. The company said it only became aware of the lawsuit when it received a copy of the judgment and as a result should not have to comply with the takedown order.
A state appeals court upheld the order, finding that Yelp was not immune under the federal Communications Decency Act. The law gives providers like Yelp some protections regarding comments third parties make on their websites.
But writing for the 4-3 state high court on Monday, Chief Justice Tani Cantil-Sakauye said the lower courts read the Communications Decency Act too narrowly in rejecting Yelp’s claim of immunity.
“Had plaintiffs’ claims for defamation, intentional infliction of emotional distress, and false light been alleged directly against Yelp, these theories would be readily understood as treating Yelp as the ‘publisher or speaker’ of the challenged reviews,” Cantil-Sakauye wrote in the 33-page opinion.
“In this case, however, Yelp is inherently being treated as the publisher of the challenged reviews, and it has not engaged in conduct that would take it outside section 230’s purview in connection with the removal order.”
The majority held Hassell’s legal remedies lie solely against Bird and cannot extend to Yelp. The justices noted the Communications Decency Act bars imposing liability and the only course of action is a court order for Bird to take down the post herself.
Justices Ming Chin and Carol Corrigan joined Cantil-Sakauye’s opinion. Justice Leondra Kruger concurred with the majority’s conclusion but for a different reason: because Hassell didn’t name Yelp as a defendant, the company did not have “its own day in court,” she wrote.
Justices Goodwin Liu and Mariano-Florentino Cuellar, meanwhile, dissented. Liu blasted the majority for offering Hassell “sympathy” while “more than four years after the trial court issued its order Bird’s defamatory reviews remain posted on Yelp.”
He noted the lower court’s order didn’t cause any harm to Yelp, which didn’t bear any expense or responsibility to defend its editorial decisions. The court’s injunction against Yelp was simply “part of the remedy for Bird’s tortious conduct toward Hassell,” he wrote.
In his dissent, Cuellar said the majority “unfortunately misconstrues the Communications Decency Act and misapplies our precedent.”
He added, “It also runs the risk of misjudging the consequences of implying, in the early 21st century, that protections from libel, defamation, so-called ‘revenge porn,’ and similar actions are plenty available except, of course, where they arguably matter most: on the digital network that gives a lone voice in the public square a megaphone loud enough to be heard in the most remote corners of the planet.”
Hassell’s attorney did not return a request for comment by press time.
In a statement, Yelp applauded the majority’s decision and took time to clarify its stance on defamatory content.
“Of course, Yelp has no interest in publishing defamation, which is not helpful to consumers, and our terms of service prohibit the posting of defamatory content. But defamation is more than just a label, and so Yelp studies court orders to ensure they are valid and actually make a showing that defamation has occurred, before Yelp removes reviewer content,” the company said.