Yelp Must Take Down Defamatory Reviews

     (CN) — Yelp must remove a user’s online reviews that defamed her former attorney for supposedly taking clerical fees out of her settlement, a California appeals court ruled.
     Just 25 days after Ava Bird hired the Hassell Law Group to represent her on a personal injury claim in 2012, Dawn Hassell withdrew as counsel, allegedly due to communication issues.
     Within months, Bird allegedly published a review on Yelp.com, under the name “Birdzeye B. Los Angeles,” giving Hassell one out of five stars, and stating that the law firm deserved less.
     Hassell says the review accused her of “ma[king] a bad situation worse,” and failing to speak with both the client and the insurance company because “her mom had a broken leg.”
     The attorney claims after she asked Bird to remove the defamatory and inaccurate review, Bird threatened to post an updated one and have someone post another, Hassell claims.
     Indeed, Bird or her agent created a fake Yelp identity, using the pseudonym “J.D., from Alameda,” to post another one-star review about the Hassell firm, the attorney says.
     “They charged me, their client, to make COPIES, send out FAXES, POSTAGE, AND FOR MAKING PHONE CALLS about my case!!!” the review reportedly said. “Isn’t that your job.” (Capitalization in original.)
     Hassell, in turn, sued Bird in April 2013, alleging defamation, trade libel, false light invasion of privacy, and emotional distress, and seeking an injunction and damages.
     The superior court entered a default judgment against the unresponsive Bird three months later.
     In January 2014, the court awarded Hassell nearly $558,000 and injunctive relief, including an order that Yelp remove Bird’s defamatory reviews from its website.
     Yet after Hassell hand-delivered a copy of the final judgment to Yelp’s attorney, the company’s senior director of litigation, Aaron Schur, objected as a nonparty.
     Yelp ultimately moved to vacate the judgment, alleging it had standing to bring the motion as an “aggrieved party,” even though it was a nonparty in the lawsuit.
     After the court denied the motion on Sept. 29, 2014, Yelp appealed.
     California’s First District Court of Appeal affirmed the lower court’s ruling Tuesday.
     “Throughout proceedings in the trial court and on appeal, Yelp has endeavored to blur the distinction between the judgment entered against Bird which awarded Hassell damages and injunctive relief, and the removal order in the judgment which directs Yelp to effectuate the injunction against Bird,” Judge Ignazio Ruvolo wrote for the three-judge panel.
     The judge noted that “Yelp asserted trial court standing to bring a motion to vacate on the ground that ‘Yelp’s rights and interests to maintain its site as it deems appropriate [were] injuriously affected by the judgment.’ However, this claimed injury did not result from the judgment itself, but only from the removal order requiring Yelp to effectuate the injunction against Bird.” (Brackets in original).
     Ruvolo disagreed with Yelp’s contention that an injunction requiring Bird to remove defamatory statements “injuriously affects” the review website.
     “Yelp’s claimed interest in maintaining [its] website as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment,” the judge wrote.
     Though the removal order aggrieved Yelp, it did not impose liability, the ruling states.
     “The removal order does not violate [the Communications Decency Act] because it does not impose any liability on Yelp,” Ruvolo wrote. “In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was awarded damages and injunctive relief against Bird, not Yelp.”
     Plus, Yelp’s motion was untimely — over 100 days late, according to the ruling.
     The appeals court remanded the case to the trial court to limit the judgment to specific defamatory statements.
      Yelp spokesman Vince Sollitto said the ruling “undermines the free speech and due process rights of consumer reviewers and the online platforms that host their content.”
     “In a single jumbled ruling, the court managed to contravene and contort longstanding precedent concerning the First Amendment, constitutional due process, and Sec. 230 of the federal Communications Decency Act,” Sollitto wrote.
     “It gives those who dislike certain speech here, a lawyer who was upset at reviews from her clients the ability to require their removal while denying the website hosting that speech the ability to defend its editorial rights to publish the speech or rebut the claims,” Sollitto added.
     Sollitto found “astonishing” the court’s order to remove “other reviews without real evidence they were posted by the defendant.”
     But Hassell’s attorney, Monique Olivier with Duckworth Peters Lebowitz Olivier in San Francisco, said the court “got it right.”
     “Yelp must comply with a court order to remove the posting,” Olivier wrote. “Neither the Constitution nor the Communication Decency Act protects defamatory speech, and removal of the speech by Yelp from the public sphere is the plaintiff’s only recourse.”

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