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On Behalf of | Jan 6, 2019 | Firm News

In this case, the California Supreme Court considered the validity of a court order, entered upon a default judgment in a defamation case, insofar as it directed appellant Yelp Inc. (Yelp) to remove certain consumer reviews posted on its website.

Yelp was not named as a defendant in the underlying lawsuit, brought by plaintiffs Dawn Hassell and the Hassell Law Group, and did not participate in the judicial proceedings that led to the default judgment. Instead, Yelp became involved in this litigation only after being served with a copy of the aforementioned judgment and order. Yelp argued that, to the extent the removal order would impose upon it a duty to remove these reviews, the directive violates its right to due process under the federal and state Constitutions because it was issued without proper notice and an opportunity to be heard. Yelp also asserted that this aspect of the order is invalid under the Communications Decency Act of 1996, relevant provisions of which 2 (found at 47 U.S.C. § 230, hereinafter referred to as section 230) 1 relate, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (§ 230(c)(1)), and “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section” (§ 230(e)(3)).

The Court of Appeal rejected Yelp’s arguments. The California Supreme Court reversed. The Court of Appeal erred in regarding the order to Yelp as beyond the scope of section 230. That court reasoned that the judicial command to purge the challenged reviews does not impose liability on Yelp. But as explained below, the Court of Appeal adopted too narrow a construction of section 230. In directing Yelp to remove the challenged reviews from its website, the removal order improperly treats Yelp as “the publisher or speaker of . . . information provided by another information content provider.” (§ 230(c)(1).)   The California Supreme Court held the order therefore must be revised to comply with section 230.

What are the implications here for defamation litigants?  It appears that if you are seeking an order to purge the defamation off the internet, you may have to also sue the service provider and deal with the Communications Decency Act of 1996!

Plaintiffs Dawn Hassell and the Hassell Law Group obtained a $557,918.85 default judgment and an injunction for removal of the defamation against defendant Bird.  Yelp was also ordered to remove the defamation; the gist of their appeals are that they should have been named initially in the lawsuit as a party and were denied due process of law, supra.  By all appearances the order is still enforceable against defendant Bird.

I see that this argument goes circular.  If Yelp would have been named as a defendant initially, they more than likely would have obtained an order of dismissal under the Communications Decency Act of 1996, and possibly under California’s Anti-SLAPP law, section 425.16 of the Code of Civil Procedure.   Plaintiffs Dawn Hassell and the Hassell Law Group would have ended up right back where they are now.

If Plaintiffs Dawn Hassell and the Hassell Law Group would have named Yelp as a co-defendant, Yelp would have filed a section 425.16 of the Code of Civil Procedure Anti-SLAPP motion, more than likely it would have been granted as to Yelp, would have more than likely incurred close to $100,000.00 in attorney’s fees and costs, then after being issued the injunction would have served it on Yelp only to be told, no, Communications Decency Act of 1996 immunity, and  back in the same position but with a possible $100,000.00 deficit.

This makes absolutely no sense in the least bit.

To emphasize, defamation is not protected speech and the Yelp post by Bird was defamation. Defendant Bird published that Plaintiffs Dawn Hassell and the Hassell Law Group committed malpractice, breach of contract, and ethical violations, that is in this writer’s opinion, were provably false assertions of material fact and damaging to Plaintiffs.  Actionable defamation.

What Yelp and other online publishers do not understand is that, while they have immunity, online consumer publishers are misled and are therefore exposed to great liability.  It’s protected free speech under the U.S. Constitution, First Amendment, correct? Not if it is indeed defamation.  The Communications Decency Act of 1996 and section 425.16 of the Code of Civil Procedure Anti-SLAPP law are extremely controversial law.  The Communications Decency Act of 1996 was intended to protect minor’s from pornography but had been amended because of Free Speech Advocates and the First Amendment, and ended up where we are today.  Similarly, section 425.16 of the Code of Civil Procedure Anti-SLAPP law is controversial; it protects litigants and attorneys from perjury, fraud, and other misconduct.

The internet is not a magazine like “Hustler” or the “National Enquirer” where a reader standing in the grocery line can decline.  What is on the internet is available at a click from a smart phone to billions; then the public believes it as gospel truth because it is on the internet, therefore it must be true.  It is a different set of circumstances and one not anticipated by the Framer’s of the U.S. Constitution.  The right to petition the government for grievances and the free flow of ideas are in a different arena.

What is defamation? Under California’s Civil Code section 45: “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”[Emphasis added.]

A false publication.  This law has it’s roots in ancient code, as far back as the start of civilization.

I am concerned with the moral fabric of our nation today and as it applies to the instant argument; on one hand we want religious freedom and want to be a country with clear rights and wrongs.  It was founded on a “Puritan” ethic.  On the other hand we want rights such a freedom of speech; and do not like any encroachments on these guaranteed individual rights. Whether right or wrong? Thus, some people are led into thinking they can publish anything they want on the internet despite any moral code.

This is the dichotomy that is struggled with here.  Clearly, the holding was not a victory for the public at large, but for corporations like Yelp and Google.  They are absolutely excepted from liability.  Should they be?

They cannot live without their customers, can they?  The holding is misleading in this regard and to a certain extent.  If a person does not have a good moral  conscience, they could feel that the internet provides them a total shield from any liability.  They are free to publish what they want with impunity?

This is clearly not the case, as defendant Bird is still liable to Hassell and has a substantial judgment against her.  Plaintiffs Dawn Hassell and the Hassell Law Group appear to have not taken judgment enforcement action against Bird, that could include contempt for not removing the defamation.  Purging the defamation is the whole point of these lawsuits, is it not?

Yelp’s position is that Plaintiffs Dawn Hassell and the Hassell Law Group should have disregarded court litigation and sought another less informal solution, and basically ignored the defamation whether defendant Bird would have voluntarily purged the defamation.  That’s easy for Yelp to assert; they were not damaged by the defamation.

Why should Plaintiffs Dawn Hassell and the Hassell Law Group have tolerated such conduct, even for one day, one hour, or one minute on the internet?  The issue is irreparable injury, which I did not see discussed in the holding.  The longer the post is public the more damage is caused, and you can never undo it.

This is the law at work here, but in no means, does it make it right.  A person and a business’s reputation have a right to be protected from total falsehoods and damage.  Should an organization like Yelp or Google be held to a higher standard in a defamation case?  That should be the thinking here and it should mean if served with an order to remove the defamation, they should despite not being a party to the case!  They should not be allowed to play both sides of the fence and cast a damaged plaintiff into a Catch-22 situation like in this case.  The holding is troubling.

Plaintiffs Dawn Hassell and the Hassell Law Group have petitioned for a writ of certiorari to the United States Supreme Court!  On whether or not you have to sue the service provider remains yet to be seen.

See Hassell v. Bird.

See Hassel v Yelp, Inc. 

If you and your business have been injured by internet defamation, you need a skilled and aggressive attorney like Robert Rodriguez to act on your behalf and seek the relief and judgment that is justified!

Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.