Tag: Yelp

CA Supreme Court in Hassell Reveals Sec. 230 is a Catch-22

First, a refresher. The broad immunity provision known as Section 230 of the Communications Decency Act was adopted in 1996 as an incentive to internet service providers to take affirmative steps to remove material. Congress wanted to encourage sites to take down certain types of offensive or obscene content (e.g. child porn), and the ISPs asserted, quite reasonably, that taking such action should not render them “publishers,” which would then leave their companies vulnerable to endless litigation stemming from unlawful content posted by users.

Since then, however, Section 230 immunity has been interpreted in court cases, and portrayed in the blogosphere, as a blanket protection allowing sites to take no action to mitigate harm by removing unlawful or harmful content. For the past 20 years, Section 230 has provided the statutory basis for ISP claims of universal neutrality—the “just a platform” argument—no matter what occurs on their sites. This premise was soundly rejected by both parties in Congress during hearings conducted in response to evidence that Russian agents had purchased American political ads on major platforms.

Hassell v. Bird

The facts of this case are quite simple. Ava Bird posted three reviews of Dawn Hassell’s law firm on Yelp, and these were held by a California trial court to be defamatory. No party disputes the unlawfulness of the reviews. Hassell successfully sued Bird and purposely did not name Yelp as a defendant in her litigation. The court ordered Bird to remove the reviews and also issued an order to Yelp to remove the content even though it was a non-party to the litigation.

Yelp, along with a host of amici, argued that the court order violated both Section 230 and its right to due process. A California Court of Appeals upheld the injunction, but this week, the State Supreme Court reversed, with the majority holding that the injunction indeed violates Section 230 and, thus, it was unnecessary to rule on the due process claim. Nevertheless, a concurring opinion by Justice Kruger does address the due process issue and holds that Yelp is correct in asserting that it had a right to its “day in court.”

So, as a practical matter, if you were in Hassell’s position, here’s the Catch-22 emphasized in this case: Section 230 forecloses the option of suing a web platform for harm stemming from unlawful conduct by a user. BUT, in this case, because Hassell did not name Yelp as a party, it then claimed that it was denied due process and, therefore, should not have to comply with a court order to remove Bird’s reviews. If that sounds like the platform gets to do whatever it wants, that’s because it is.

The CA Supreme Court described Hassell’s decision not to name Yelp a “litigation strategy” employed to “accomplish indirectly what Congress has clearly forbidden them to achieve directly.” If Congress chooses to address some of the the unintended consequences of Section 230, this seems like a statement worth underlining. Because Hassell’s decision not to sue Yelp—to hold them in no way liable for the harm done by Bird—appears to this reasonable observer as entirely consistent with the intent of 230 to shield platforms from costly and chronic litigation. As Justice Liu states in his dissent …

“No one has burdened Yelp with defending against liability for potentially defamatory posts. Here, the trial court ordered Yelp to remove postings that have been already adjudicated to be defamatory. Hassell sued Bird, not Yelp, and the litigation did not require Yelp to incur expenses to defend its editorial judgments or any of its business practices.”

That is the heart and soul of Section 230 at its origin, and it is consistent with recent declarations by both parties in Congress that the immunity in the CDA was never designed to obviate all platform responsibility. To the contrary, it was designed to encourage that responsibility. So, to the extent the majority opinion in this case rests on a plausible, or even reasonable, reading of the statute, this case may serve as guidance to Congress for considering revision of Section 230.

Is the language of 230 problematic?

Specifically, the majority opinion holds that Section 230(e)(3) bars this injunction against Yelp as a non-party due to the wording, “No cause of action my be brought and liability may be imposed under any State or local law that is inconsistent with this section.” Thus, if it is this court’s understanding that the order for Yelp to remove unlawful content is a prohibited “cause of action,” but that a plaintiff is simultaneously barred by the same statute from actually suing Yelp, then it may be time for Congress to reconcile exactly this discrepancy.

I agree completely that Yelp should not be sued, or otherwise held liable, for any harm that may have been done to Hassell through the unlawful conduct of Bird. But in the realities of the digital market, where serious harm is both easily and cheaply effected, there is no justice in holding that a platform’s immunity from costly liability extends to an immunity from taking responsible, mitigating action which costs nothing.  In this regard, Justice Kruger’s concurring opinion also recognizes the difficult realities of the statute, stating…

“Section 230 has brought to an end to a number of lawsuits seeking remedies for a wide range of civil wrongs accomplished through Internet postings—including, but not limited to, defamation, housing discrimination, negligence, securities fraud, cyberstalking, and material support of terrorism.”

And in fairness, she further states…

“Whether to maintain the status quo is a question only Congress can decide. But at least when it comes to addressing new questions about the scope of section 230 immunity, we should proceed cautiously, lest we inadvertently forbid and even broader swath of legal action than Congress could reasonably have intended.”

Justice Cuéllar concurred with the opinion on the basis that a proper finding of fact was not made regarding Yelp’s conduct that would render it properly a subject to an injunction as a non-party. But at the same time, he had this to say about Section 230 immunity …

“To the extend the Communications Decency Act merits its name, it is because it was not meant to be—and it is not—a reckless declaration of the independence of cyberspace. Nothing in section 230 allows Yelp to ignore a properly issued court order meant to stop the spread of defamatory or otherwise harmful information on the Internet.”

Ouch. That allusion to Barlow is a pretty solid kick right in the EFFin gut. And that’s from a justice ruling in Yelp’s favor—for now. Suffice to say, there is plenty in this decision that stops short of the internet activist view that Section 230 immunity is both absolute and sacrosanct. Even the majority opinion is tempered by editorial comments acknowledging that platform irresponsibility causes tangible social harm.

As a final comment, I’ll pose the following food for thought:

Once a court has vitiated the role of the original author of some unlawful content (i.e. Bird has been found guilty and ordered under pain of contempt to remove her reviews), how is it that the platform which continues to publish the unlawful content is not then held to be the “author” of that content? If I plagiarize a work, I am guilty as the “author” of the plagiarism; and if I further use plagiarized material to defame someone, the original author is not liable for the defamation; I am.

Moreover, if Bird requests that Yelp remove her reviews and they do not, is Yelp not violating her First Amendment rights by means of coerced speech; and are they also not potentially liable for forcing her into a state of contempt of court by means of that coerced speech?

Yelp Claims Contradictory Rights

Chameleon photos by leisuretime70

Imagine Elizabeth Proctor runs a corner café in a small town and that Abby Williams has held a grudge against Elizabeth ever since the former beat her out for cheerleader captain back in high school.  So, feeling especially vindictive one afternoon, Abby writes a nasty review of Lizzy’s café on Yelp, complete with invented details about bugs and other health violations.  In response, Elizabeth sues Abigail for defamation and wins her case, and the court issues an injunction that includes an order for Yelp to remove the libelous reviews.  But the website refuses to remove the reviews even though they’ve been held to be defamation under the law …

Perhaps it’s folly to contradict the opinions of I don’t know how many attorneys who filed a dozen amicus briefs on behalf of Yelp in a case now heading to the California Supreme Court, but I’m gonna.  Because I believe the concerned parties—and this includes news media publishers whom I consistently support—may be overstating the hazardous implications of the California Appeals Court decision in the case of Hassell v Bird.

In 2013 Ava Bird posted negative reviews about San Francisco attorney Dawn Hassell on Yelp. Hassell believed the reviews to be defamatory rather than honest criticism. She sued Bird and won on a default judgment because Bird failed to appear in her own defense. Whether the reader would agree that Bird’s reviews were defamatory is immaterial at this point for two reasons: 1) the default judgment settles the matter as far as the law is concerned; and 2) in the context of what this case is now about, let us at least agree that online reviews can easily be abused by a bad actor, or a competitor, to defame a person or business.  (On a side note, Hassell’s firm has a lot of positive reviews on Yelp.)

In its judgment, the court issued an injunction, which included an order for Yelp to remove Bird’s reviews.  This is a standard form of relief provided by courts in such cases. When an entity is not a named party in a litigation (i.e. they bear no liability for any harm), but the non-party is indirectly supporting some harm being done, the non-party can be prevented from continuing to support the harmful conduct. (See earlier post about Equustek v. Google.)

A typical example would be a court order that Visa and MasterCard stop processing payments for a named defendant in a case, regardless of the fact that these companies bear no liability for any harm that may have been done to a named plaintiff. If you were harmed by defamatory statements on a web platform, and proved defamation in court, you would naturally want the material removed even if you would not—and could not—hold the platform responsible for the harm you received.

But when it comes to complying with this type of injunctive relief, the owners of web platforms get a little antsy; and this includes the news media platforms, who filed an amicus brief in this case emphasizing the importance of comment sections to the overall vibrancy of journalism in the digital age. Other amici, including the EFF, the ACLU, and several web platforms, all assert that if the injunction ordered by the California Court of Appeals is upheld, this will harm due process, free speech, and the liability shield in Section 230 of the Communications Decency Act (1996) that is accorded to online service providers.

Although it is a habit of many site owners to behave as though the removal of any content is a slippery slope toward censorship, let’s remember that in just this one case, the plaintiff had to prove defamation in court and pray for injunctive relief—and that was in 2013, which is about 730 trillion tweets ago, just for perspective. But the real complication in this story comes when websites assert their interests under both the First Amendment and Section 230, because the two are fundamentally at odds.

First Amendment or Section 230:  Pick One

In simple terms, Section 230 of the CDA protects websites and other service providers from liability stemming from the actions of its users. The underlying premise for this protection is that the platforms and providers are not “publishers” of the content (i.e. they are not the speakers). Section 230 is an important protection and one that indeed enables sites to function without undue risk of litigation. But the amici filing on behalf of Yelp also claim that Yelp and all web platforms have First Amendment rights at stake in Hassell, and the problem is this:  if you’re not the speaker, you can’t claim a First Amendment right of speech because you’re not speaking! (read that as Lewis Black).

Yelp wants it both ways. They want the liability shield afforded by Section 230 on the basis that it is not the speaker but also want to claim First Amendment rights as if it were the speaker. Sometimes, web platforms claim to be protecting the free speech rights of their users, and this can be a valid claim in many instances.  In fact, this concern appears central to the news media sites, who unquestionably have a right to support the free speech inherent in the dialogue between their journalists and the readers who write comments. These parties even point to several intriguing statistics suggesting that reader comments can, in many ways, improve the quality of their own reporting; and this should not be undervalued.

Nevertheless, I would argue that a site like Yelp, which trades substantially in consumer reviews of businesses on a local level, is already a very different forum from the comments section of a news site. More to the point, it is a forum that is uniquely vulnerable to someone acting with malicious intent to defame a specific proprietor. It seems that it would be far easier to demonstrate how a libelous review might meet the standard of “defamation” under the law than it would be to prove that a comment on a news story rises to this level of harm.

Still, if a comment on a news site were to spark events akin to a “Pizzagate,” the party who wrote the comment can be sued; and the site(s) hosting the defamatory content should be ordered to remove it—though I would think they’d want to do so voluntarily for the sake of their own reputations.  What if Bird had said that Hassell was running a child porn ring through her law firm? Would we still be seeing the same response from Yelp and the other petitioners? Because from a purely legal standpoint, she might as well have written something equally outrageous since free speech does not protect defamation, regardless of how extreme or mild the defamation may be. And although it is true that websites often rightly defend the speech of their users, that motive simply does not apply in this case because Bird’s reviews became unprotected speech the moment they were held to be defamatory.

Section 230 is Not a Blank Check

The due process piece of this puzzle gets a little deep into the weeds, and I will admit that there may be procedural complaints at play of which I am unaware; but as a general observation, the crux of Yelp’s due-process argument here appears to be based on the same paradoxical premise that the site can be both a speaker and a non-speaker at the same time. For instance, I offer the following from Yelp’s brief filed in 2016:

“The court reached its conclusion only by pretending that Yelp is nothing more than the ‘administrator’ of its website, ignoring Yelp’s role as a publisher of third-party authored speech and its First Amendment right to control its own website. [Emphasis added]

The court of appeal combined its unwarranted rejection of Yelp’s due process and First Amendment rights, with an unprecedented narrowing of the previously robust protection provided by the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”), to deny Yelp the federal immunity it would have received if Hassell had sued it. The court exalted the form of the action––namely, the fact that Yelp was tactically not named as a party—over the plain language of Section 230 and Congress’ clear intent in enacting it to protect websites from actions that treat them as publishers or distributors of third-party content.” [Emphasis added]

In paragraph one, Yelp is a publisher; and in paragraph two, it is not a publisher. Yelp asserts its First Amendment right to control its own website, which is certainly the case; but the liability shield provided by Section 230 is still predicated on the assumption that said control does not place them in the role of publisher (or speaker). But Yelp seems to be implying that if Hassell had named them in the suit–something she had no reason to do–they would then be defendants accorded a hearing and consequently have been able to argue their Section 230 right to not remove Bird’s reviews.

But nowhere in the statute is there any implication that a website does not have to comply with a court order to remove specific content, whether the site is a party or non-party to a litigation. In fact, the CDA actually began as an enforcement provision—a legislative effort to keep online pornography away from kids. Make of that what you will, but the addition of Section 230 was designed solely to limit the liability of service providers from any harm that may stem from content posted by third-party users. Neither its language nor its intent appears to excuse web companies from complying with generally applicable law; and an injunction directed at a non-party is a generally-applicable, standard form of relief. Website owners have no more right to ignore these orders than the payment processors mentioned above.

While I sympathize with some of the principles being argued by Yelp and the other petitioners–particularly those of the news media sites who are both publishers and hosts of third-party content–I believe the arguments being made are seeking a decision that would be unbalanced. Any party that is held in a court of law to be harmed by some conduct should have access to the same remedies in the digital age as in the pre-digital age. Moreover, the cost of causing harm via the web is virtually zero while the cost of proving harm under the law still requires a substantial investment of time and financial resources.  This alone should allay the fears of site owners that the decision of the appeals court in this case potentially swings the pendulum toward greater censorship online.