Yelp Wins Fight to Post False and Defamatory Reviews

hassell v. bird

In reading the California Supreme Court’s decision in Hassell v. Bird, which just came out today, an expression by my father-in-law came to mind. He was a real, honest-to-goodness cowboy, and when asked how things were going, he would often answer, “Well, I’m just stepping in cow dung with one boot and knocking it off with the other.” [He didn’t actually use the word “dung.”]With today’s opinion, Yelp temporarily knocked off some dung, but stepped right back in it.

Hassell v. Bird involved an attorney by the name of Dawn Hassell and her firm the Hassell Law Group. Hassell’s April 2013 complaint arose out of Hassell’s legal representation of a client named Ava Bird for a brief period during the summer of 2012. The complaint alleged the following facts about that representation: Bird met with Hassell in July to discuss a personal injury she had recently sustained. On August 20, Bird signed an attorney-client fee agreement. However, on September 13, 2012, Hassell withdrew from representing Bird because they had trouble communicating with her and she expressed dissatisfaction with them. During the 25 days that Hassell represented Bird, Hassell had at least two communications with Allstate Insurance Company about Bird’s injury claim and notified Bird about those communications via e-mail. Hassell also had dozens of direct communications with Bird by e-mail and phone and at least one in-person meeting.

When legal representation was withdrawn, Bird had 21 months before the expiration of the statute of limitations on her personal injury claim, and had not lost any rights or claims relating to her injury. Sometimes things just don’t work out between an attorney and the client, but clients hate to be sent packing, even if they were being a horse’s behind the entire time. So long as the attorney fires the client with sufficient time for the client to seek new representation, there should no issue, but some clients behave like a jilted prom date.

According to Hassell, on January 28, 2013, Bird published a review on Yelp.com about her experience with Hassell (“the January 2013 review”). Hassell attempted to contact Bird by phone to discuss the publication, but she failed to return the call, so the firm sent her an e-mail “requesting she remove the factual inaccuracies and defamatory remarks from her Yelp.com written statement.” Still mad that she never got a corsage, as it were, in an e-mail response, Bird made derogatory comments about Dawn Hassell’s legal skills, refused to remove the January 2013 review, and threatened to post an updated review and to have another review posted by someone else.

True to her word, according to the complaint, on February 6, 2013, Bird or her agent created a “fake Yelp identity, using the pseudonym ‘J.D.,’ from Alameda,” to post another negative review about the Hassell firm on Yelp.com (“the February 2013 review”). Hassell believed that Bird was “J.D.” because Hassell never represented a client with the initials J.D., and because the February 2013 review was posted shortly after the January 2013 review and used similar language.

Hassell couldn’t take it anymore, so in their complaint, Hassell and her firm alleged causes of action against Bird for defamation, trade libel, false light invasion of privacy, and intentional infliction of emotional distress. In a fifth cause of action for injunctive relief, Hassell alleged that Bird’s ongoing wrongful acts were the direct and proximate cause of substantial pecuniary losses and irreparable injury to Hassell’s business reputation and good will, and that they were entitled to an injunction because there was no adequate remedy at law to compensate them for their continuing injuries. Hassell prayed for “injunctive relief prohibiting Defendant Ava Bird from continuing to defame plaintiffs as complained of herein, and requiring Defendant Ava Bird to remove each and every defamatory review published by her about plaintiffs, from Yelp.com and from anywhere else they appear on the internet.”

The Yelp Reviews about Hassell

The allegedly defamatory statements about Hassell that were posted on Yelp.com were attached as exhibits to the Hassell complaint. The January 2013 review was posted by a reviewer who used the name “Birdzeye B. Los Angeles, CA.” It was identified by Yelp as one of “10 reviews for The Hassell Law Group” that Yelp used to give Hassell an overall star rating of four and one-half out of five stars. Birdzeye B., however, gave Hassell a rating of one out of five stars, and stated that the law firm did not even deserve that.

The reviewer’s critique was directed at both the Hassell firm and Dawn Hassell personally, who was accused of “ma[king] a bad situation worse for me,” and reneging on her obligations because “her mom had a broken leg” and because “the insurance company was too much for her to handle.” The review also stated: “the hassell law group didn[’]t ever speak with the insurance company either, neglecting their said responsibilities and not living up to their own legal contract! nor did they bother to communicate with me, the client or the insurance company AT ALL . . . .”

The February 2013 review was posted by a reviewer who used the name “J.D. Alameda, CA.” It ended up as one of those filtered Yelp reviews that you don’t see unless you click on the link that takes you to the filtered reviews. These reviews are not included in the overall “star rating” average. The user who posted the February 2013 review gave Hassell a one star rating and provided the following information: “Did not like the fact that they charged me their client to make COPIES, send out FAXES, POSTAGE, AND FOR MAKING PHONE CALLS about my case!!! Isn’t that your job. That’s just ridiculous!!! They Deducted all those expenses out of my settlement.” (Original capitalization.)

The Default Judgment

On April 17, 2013, Hassell served Bird with the summons and complaint, but Bird never answered, and on June 18, 2013 Hassell took her default, which was entered and filed on July 11, 2013. [A person who has knowingly posted a fake review on Yelp will typically respond in one of two ways. Because they know they can’t prove the false statements they made, they will just ignore the complaint, as Bird did, or cut their losses and take down the false review.]

On November 1, 2013, Hassell filed a notice of hearing on their application for default judgment and request for injunctive relief. The application was supported by a “plaintiffs’ summary of the case,” which provided additional details about matters alleged in the complaint, and also described a third review that Bird allegedly posted on Yelp.com on April 29, 2013 (“the April 2013 review”). Hassell’s case summary also argued the merits of its case.

Hassell and her firm were concerned that a default judgment might somehow deprive them of the ability to obtain injunctive relief, thinking that injunctive relief would require a trial or hearing. They needn’t have been concerned. I routinely obtain injunctive relief on default judgments. But I will never criticize an abundance of caution, and in support of its request for injunctive relief, Hassell argued that “once the trier of fact has determined [Bird] made defamatory statements,” the court would have authority to issue an injunction, and that if the same showing could be made at a prove-up hearing, a comparable injunction would be proper. Hassell reasoned that denying injunctive relief after a default prove-up hearing would mean a plaintiff can be forced to suffer defamatory harm so long as the defendant refuses to answer the complaint. Hassell requested that the injunction contain a provision requiring Yelp to remove the defamatory reviews in the event that Bird failed to do so, which was likely in light of her history of “flaunting” California’s court system.

Through declarations from Dawn Hassell and another Hassell attorney named Andrew Haling, Hassell filed extensive documentary evidence, including Bird’s attorney-client agreement, correspondence between Hassell and Bird, evidence of damages, and comments about Hassell that were posted on Yelp.com., including the April 2013 review that Hassell identified in its case summary as another defamatory statement by Bird.

The April 2013 review was posted by “Birdseye B. Los Angeles, CA, and was identified by Yelp as one of “11 reviews for The Hassell Law Group” that Yelp used to calculate Hassell’s overall star rating. The reviewer described his or her statements as an update to Birdseye B.’s earlier review and then stated that Dawn Hassell had filed a lawsuit “against me over this review,” and that she “tried to threaten, bully, intimidate, [and] harass me into removing the review!” Birdseye B. also stated: “the staff at YELP has stepped up and is defending my right to post a review. once again, thanks YELP! . . .”

On January 14, 2014, a default prove-up hearing was held before the Honorable Donald Sullivan. Dawn Hassell and Andrew Haling appeared on behalf of Hassell and there was no appearance by Bird. Dawn Hassell was sworn and testified, and, after considering all the evidence, the court entered judgment against Bird. Hassell was awarded general and special damages and costs totaling $557,918.75, but was denied punitive damages. The Bird judgment also awarded Hassell injunctive relief pursuant to the following provisions:

“Plaintiffs’ Request for Injunctive Relief is Granted. Defendant AVA BIRD is ordered to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from [Y]elp.com and from anywhere else they appear on the internet within 5 business days of the date of the court’s order.”

“Defendant AVA BIRD, her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website.”

And here is the big one, and the reason this case went all the way to the California Supreme Court:

“Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order.”

On January 15, 2014, Hassell served Bird with notice of entry of judgment. Bird did not appeal, and the judgment became final on March 16, 2014. [Can you imagine just sitting back and doing nothing about a $557,918.75 judgment that was obtained against you? Defendants sometimes feel, rightfully so, that they are so without assets as to be judgment proof, but with a renewal a judgment is good for 20 years. I would hate to bet that in the next 20 years I’ll never have wages or assets that can be seized. But I digress.]

Hassell’s Efforts to Enforce the Judgment

On January 15, 2014, Hassell hand-delivered a copy of the Bird judgment to an attorney employed by Yelp named Laurence Wilson, along with a letter requesting that Yelp comply with the judgment. On January 28, Hassell caused the judgment to be personally served on Yelp’s national registered agent for service of process. In a letter served with the judgment, Dawn Hassell highlighted the following circumstances: Yelp had failed to comply with the court deadline for removing Bird’s defamatory reviews; Laurence Wilson had not replied to Dawn Hassell’s January 15 letter or returned phone calls from Hassell; and “Yelp, Inc.’s non-compliance with the court’s order will become the subject of contempt proceedings and a further lawsuit against Yelp if Yelp refuses to comply with the judgment as my business is being further damaged.”

Yelp’s senior director of litigation, Aaron Schur. Yelp responded to Dawn Hassell in a February 3, 2014 letter. Schur stated that Yelp objected to the judgment “to the extent directed at Yelp itself” for three reasons: (1) Yelp was a nonparty to the litigation; (2) Yelp was immune from liability for it publication of a review; and (3) Hassell failed to properly serve Bird or prove its defamation claims against her. Schur also informed Hassell that Yelp had made the decision not to comply with the judgment, stating: “the judgment and order are rife with deficiencies and Yelp sees no reason at this time to remove the reviews at issue. Of course, Yelp has no desire to display defamatory content on its site, but defamation must first be proven.” Schur stated that Yelp would “revisit its decision” if it was presented with stronger evidence. He also warned that Hassell’s “threats” of litigation against Yelp were not well taken because Yelp would file a motion to dismiss and recover attorney fees under the anti-SLAPP law, “as it has done in the past in similar cases.”

In an April 30, 2014 letter to Schur, Dawn Hassell asked that Yelp reconsider its position in light of the facts that Bird had refused to comply with the judgment, and, as a practical matter, she was judgment proof because the award against her was uncollectable. Dawn Hassell also objected to a recent decision by Yelp to recommend one of Bird’s defamatory reviews. As Hassell explained, “I also take issue with the fact that Yelp has now highlighted these defamatory reviews by user ‘Birdzeye B.’ (already confirmed to be Defendant Bird) by listing them as ‘Recommended Reviews,’ so other Yelp visitors see these defamatory reviews first, above more recent, honest, positive reviews.”

Finally, Dawn Hassell advised Schur of her plan to file a motion to enforce the judgment. She reminded him that she had sought Yelp’s assistance before initiating litigation, but was informed by Yelp that her only recourse was against Bird. However, after obtaining a judgment against Bird, it was now clear that the only remedy available to Hassell was to have Yelp take down the reviews. Ms. Hassell stated that if Yelp believed the injunction was too broad, she was “willing to discuss stipulating with you to terms pertaining to Yelp that would be more agreeable, for settlement purposes only, and before the motion to enforce the court’s order is heard.”

On May 23, 2014, Yelp filed a notice of motion and motion to set aside and vacate the Bird judgment pursuant to section 663 on the “grounds that the legal basis for the decision is not consistent with or supported by the facts or applicable law.” In its supporting memorandum, Yelp alleged it had standing to bring the motion as an “aggrieved party,” even though it was a nonparty in the action. Yelp then argued the trial court was required to vacate the Bird judgment because: (1) Hassell’s failure to name Yelp as a party defendant violated Yelp’s right to due process; (2) Yelp was immune from liability for posting Bird’s reviews pursuant to the CDA, 47 United States Code section 230; (3) the judgment violated section 580 by awarding relief that Hassell did not request in their complaint; and (4) the judgment subverted Bird’s First Amendment rights by suppressing speech that Hassell failed to prove was defamatory.

On August 27, 2014, the Honorable Ernest H. Goldsmith (after some issues about who should hear the motion) held a hearing on Yelp’s motion to vacate, accepted evidence, entertained arguments and then took the matter under submission. On September 29, 2014, the court filed an order denying Yelp’s motion to set aside and vacate the judgment (“the September 2014 order”). The September 2014 order contains two sets of findings.

First, regarding the judgment itself, the court found that Judge Sullivan (1) conducted a court trial, (2) made a finding that Bird’s postings about Hassell on Yelp.com were defamatory; (3) granted injunctive relief against Bird which required her to remove her defamatory reviews from Yelp.com; and (4) also ordered nonparty Yelp to remove the defamatory reviews.

Judge Goldsmith then concluded that, under California law, an injunction can be “applied to” a nonparty by virtue of its relationship to an enjoined party. (Citing Ross v. Superior Court (1977) 19 Cal.3d 899, 906 (Ross).)

The second set of findings in the September 2014 order pertained to “Hassell’s contention that Yelp is aiding and abetting Bird’s violation of the injunction.” The court found that the evidence showed that (1) Yelp highlighted Bird’s defamatory reviews on Yelp.com by explicitly recommending one of her reviews, and also by refusing to take account of a “litany” of favorable reviews that users had posted when it calculated a “star rating” for the Hassell law firm; (2) Yelp’s motion to vacate was not limited to its own interests, but sought to vacate the entire Bird judgment by making arguments that pertained only to the propriety of the judgment against Bird; and (3) Yelp refused to acknowledge or abide by a judicial finding that Bird’s reviews are defamatory notwithstanding that its own terms of service require Yelp.com users to agree not to post a “fake or defamatory review. . . .” Based on these findings, the court concluded that “Yelp is aiding and abetting the ongoing violation of the injunction and that Yelp has demonstrated a unity of interest with Bird.” [See? The judge concluded that these fake reviews violate Yelp’s own terms of service. Why is Yelp fighting to preserve fake reviews that violate its own terms of service?]

Preliminary Considerations

In its opening brief on appeal, Yelp requested that the Appellate Court “reverse and vacate the trial court’s judgment.” Well, that was a problem, because Yelp was not a party to the action, and certainly had no standing to reverse the entire judgment as to Bird. But through a very long procedural discussion, the Court of Appeal found a way to give Yelp standing to challenge at least the injunctive ruling.

It found that Yelp was aggrieved by the removal order directing Yelp to remove Bird’s defamatory reviews from Yelp.com, and that Yelp became a party of record in the case by filing a nonstatutory motion to vacate the allegedly void order within a reasonable time after entry of the judgment; and, therefore, Yelp has standing to appeal the removal order provision contained in the Bird judgment.

Could Yelp be ordered to remove the review?

The substantive issue raised by the appeal was whether the trial court had the legal authority to make the removal order directing Yelp to remove Bird’s defamatory reviews from Yelp.com.

Yelp contended that Judge Sullivan did not have that authority because the removal order (1) violates due process; (2) constitutes a prior restraint of speech; and (3) is barred by the CDA.

Due Process

Yelp contended that the removal order was barred by due process because the trial court did not afford Yelp notice or a hearing before the order was entered. There were two distinct prongs to Yelp’s due process theory: first, that the trial court could not order Yelp to implement the injunction because it was not a party in the defamation action [so Yelp wants to be sued?]; and second, that prior notice and a hearing were mandatory because the removal order impinged on Yelp’s First Amendment right to “host” Bird’s reviews.

An Injunction Can Run Against a Nonparty

To this argument, the Court of Appeal concluded that an injunction is obviously a personal decree. It operates on the person of the defendant by commanding him to do or desist from certain action. Indeed it may deprive the enjoined parties of rights others enjoy precisely because the enjoined parties have abused those rights in the past. Thus, it is well established that injunctions are not effective against the world at large.

On the other hand, the law recognizes that enjoined parties may not nullify an injunctive decree by carrying out prohibited acts with or through nonparties to the original proceeding. Thus, an injunction can properly run to classes of persons with or through whom the enjoined party may act. However, “a theory of disobedience of the injunction cannot be predicated on the act of a person not in any way included in its terms or acting in concert with the enjoined party and in support of his claims.” (Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 352-353; see also People v. Conrad (1997) 55 Cal.App.4th 896, 902; In re Berry (1968) 68 Cal.2d 137, 155-156; Berger v. Superior Court (1917) 175 Cal. 719, 721.)

The Court of Appeal held that these settled principles undermine Yelp’s theory that the trial court was without any authority to include a provision in the Bird judgment which ordered Yelp to effectuate the injunction against Bird by deleting her defamatory reviews. As Judge Goldsmith observed in the order denying Yelp’s motion to vacate, our Supreme Court has explicitly confirmed that injunctions can be applied to nonparties in appropriate circumstances. “In matters of injunction . . . it has been a common practice to make the injunction run also to classes of persons through whom the enjoined person may act, such as agents, servants, employees, aiders, abettors, etc., though not parties to the action, and this practice has always been upheld by the courts, and any of such parties violating its terms with notice thereof are held guilty of contempt for disobedience of the judgment.” (Ross, supra, 19 Cal.3d at p. 906.)

Yelp contended that the rule permitting a court to enforce an injunction against a nonparty is limited to situations in which “a group or organization has been enjoined, so as to prevent the group’s individual members who are not named in the injunction from acting on behalf of that group.” As support for this claimed limitation, Yelp cited the case People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna). The issue in Acuna was whether designated members of a criminal street gang who were named defendants in a public nuisance action could be subject to an injunction because of the documented activities of the group to which they belonged. In approving such an injunction, the Acuna court did not impose any restriction on a court’s authority to issue an injunction which runs also to a nonparty. Nor did it even consider that question.

Yelp ineffectually cited two additional cases to support its contention that the trial court could not order a nonparty to effectuate the injunction against Bird: Fazzi v. Peters (1968) 68 Cal.2d 590 (Fazzi) and Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 120-121 (Tokio Marine).

Fazzi was a damages action against a partnership. The appellant was an alleged partner who had been served with process but had not been made a party to the underlying action against the partnership. Neither the appellant, nor his alleged co-partner, nor the partnership appeared in the action, and a judgment of default was entered holding each of them individually and doing business as a co-partnership jointly and severally liable for money damages in the approximate amount of $49,000. The Fazzi court reversed the default judgment against the appellant, applying “the general rule that a judgment may not be entered either for or against a person who is not a party to the proceeding, and any judgment which does so is void to that extent.” (Fazzi at pp. 594-595, 598.)

Tokio Marine involved a lawsuit to determine fault for a fire as between a general contractor and a roofing contractor. After judgment was entered in favor of the roofing contractor, the trial court summarily granted the roofing contractor’s motion to amend the judgment to add the general contractor’s insurer as an additional judgment debtor. On appeal, the Tokio Marine court reversed the judgment against the insurer, finding that the insurer was not a party in the action or an alter ego of the original defendant. Furthermore, the court found that the summary addition of the insurer as an additional judgment debtor violated due process. (Tokio Marine at pp. 120-121.)

The Court of Appeal concluded Fazzi and Tokio Marine are inapposite because both cases involved money judgments that were entered against nonparties to the litigation. Here, by contrast, the damages portion of the judgment was entered solely against Bird. Neither Fazzi nor Tokio Marine address whether an injunction imposed against a party can be enforced against a nonparty.

Yelp argues in the alternative that, even if the injunction against Bird could properly be enforced against a nonparty like Yelp, the evidence in this case does not “support the theory that Yelp was somehow ‘aiding and abetting’ Bird’s violation of the injunction.” This issue was a major dispute below. But as we have already discussed, it has no bearing on the question whether the trial court was without power to issue the removal order in the first instance. The authority summarized above establishes that a trial court does have the power to fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonparty to the original proceeding.

Yelp’s First Amendment Rights

Yelp’s second due process theory was that the First Amendment protects Yelp’s right “to distribute the speech of others without an injunction,” and “Yelp simply cannot be denied those rights without notice of the proceedings and an opportunity to be heard.” To support this argument, Yelp cited Marcus v. Search Warrants. (1961) 367 U.S. 717 (Marcus). [Defamatory speech is never protected, so I don’t think this argument is going to get very far.]

In Marcus, wholesale distributors of books and magazines alleged that Missouri’s procedure for seizing allegedly obscene publications had been applied to them in a manner which violated their due process rights. The evidence in that case showed that a police officer filed complaints stating that each appellant kept “obscene” publications for sale; a circuit judge conducted an ex parte hearing on the complaints; and, without reviewing the allegedly obscene material, the judge issued warrants authorizing any officer in the state to search for and seize obscene materials from appellants’ premises. The warrants were subsequently executed by different officers who seized all publications which, in their judgment, were obscene. Thirteen days later, appellants were afforded hearings on their motions to quash the search warrants, suppress evidence, and return their property. More than two months after the materials were seized, the circuit judge issued an opinion finding that 180 of the 280 seized items were not obscene and were to be returned to appellants. (Marcus at pp. 723-724.)

The United States Supreme Court held that, as applied to the Marcus appellants, Missouri’s procedure lacked due process safeguards to assure that non-obscene materials were afforded First Amendment protection. (Marcus, supra, 367 U.S. at p. 731.) “Putting to one side” the fact that appellants were not afforded an opportunity to challenge the complaints filed against them prior to execution of the warrants, the court highlighted several flaws in the Missouri procedure, including that the judge issued a warrant based on cursory allegations of a single officer without actually reviewing any of the allegedly obscene material; the warrants gave officers broad discretion to use individual judgment to determine what material was obscene; the officers were provided with no “guide to the exercise of informed discretion”; and two-thirds of the seized publications which were not obscene were withheld from the market for over two months. These circumstances demonstrated that Missouri’s procedure lacked sufficient safeguards to justify conferring discretion on law enforcement to seize allegedly obscene materials: “Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees.” (Id. at p. 733, fn. omitted.)

The Court of Appeal disagreed that Marcus supported Yelp’s due process claim for several reasons. First, Yelp’s factual position in this case is unlike that of the Marcus appellants, who personally engaged in protected speech activities by selling books, magazines and newspapers. In order to claim a First Amendment stake in this case, Yelp characterized itself as a publisher or distributor. But, at other times Yelp portrays itself as more akin to an Internet bulletin board – host to speakers, but in no way a speaker itself.

Of course, Yelp may play different roles depending on the context. However, in this context it appeared to the Court of Appeal that the removal order does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.

Second, even if Yelp’s operation of an interactive website is construed as constitutionally protected speech by a distributor, Marcus does not support Yelp’s broad notion that a distributor of third party speech has an unqualified due process right to notice and a hearing before distribution of that speech can be enjoined. In Marcus, the use of an ex parte hearing to secure search warrants was only one of many problems with the Missouri procedure which culminated in the ruling that appellants’ due process rights were violated. (Marcus, supra, 367 U.S. at pp. 731-733.) Indeed, in a subsequent case in which Marcus was distinguished, the Supreme Court clarified that “[t]his Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.” (Heller v. New York (1973) 413 U.S. 483, 488.)

Third, and crucially, the Court of Appeal held that the due process problems explored in Marcus and its progeny pertain to attempts to suppress speech that is only suspected of being unlawful. Here, we address the very different situation in which specific speech has already been found to be defamatory in a judicial proceeding. Yelp could not cite any authority which conferred a constitutional right to a prior hearing before a distributor can be ordered to comply with an injunction that precludes re-publication of specific third party speech that has already been adjudged to be unprotected and tortious.

The Constitutional Bar Against Prior Restraints

Yelp also contended the trial court was without authority to issue the removal order because it constitutes a prior restraint of speech.

1. Applicable Law

“An order prohibiting a party from making or publishing false statements is a classic type of an unconstitutional prior restraint. ‘While [a party may be] held responsible for abusing his right to speak freely in a subsequent tort action, he has the initial right to speak freely without censorship.’” (Evans v. Evans (2008) 162 Cal.App.4th 1157, 1167-1168.) However, the constitutional bar against prior restraint of speech “does not apply to an order issued after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory. . . .” (Id. at p. 1168, citing Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1155-1156, italics omitted (Balboa Island).)

In Balboa Island, a restaurant owner filed a defamation action against a vocal critic of the restaurant. After a bench trial, the court issued a permanent injunction which enjoined the defendant from engaging in various activities including repeating specifically identified defamatory statements about the plaintiff to third parties. The California Supreme Court held that the injunction was overbroad in some respects, but that “a properly limited injunction prohibiting [the] defendant from repeating to third persons statements about the [restaurant] that were determined at trial to be defamatory would not violate [the] defendant’s right to free speech.” (Id. at p. 1146.)

The Balboa Island court began with the foundational premise that freedom of speech is a fundamental right protected against invasion by state action by both the First and Fourteenth Amendments. (Balboa Island, supra, 40 Cal.4th at p. 1147.) But the court also recognized that this right is not absolute: “[T]here are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend because they ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’”

Libelous speech has been held to constitute one such category. Because defamation is not protected by the First Amendment, the Balboa Island court concluded, “an injunction issued following a trial that determined that the defendant defamed the plaintiff that does no more than prohibit the defendant from repeating the defamation, is not a prior restraint and does not offend the First Amendment.” (Balboa Island, 40 Cal.4th at p. 1148.) As the court explained, an injunction that is entered following a determination at trial that the enjoined statements are defamatory does not constitute a prohibited prior restraint of expression because “[o]nce specific expressional acts are properly determined to be unprotected by the [F]irst [A]mendment, there can be no objection to their subsequent suppression or prosecution.” (Id. at pp. 1155-1156.)

2. Analysis

The removal order directed at Yelp states: “Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdseye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order.”

Under the authority of Balboa Island, the trial court had the power to make the part of this order requiring Yelp to remove the three specific statements that were set forth in the exhibit A attachment to the Bird judgment because the injunction prohibiting Bird from repeating those statements was issued following a determination at trial that those statements are defamatory. However, to the extent the trial court additionally ordered Yelp to remove subsequent comments that Bird or anyone else might post, the removal order was deemed to be an overbroad prior restraint on speech. Therefore, the Court of Appeal remanded the matter back to the trial court with directions that it modify the removal order consistent with this limitation.

Yelp contended that limiting the scope of the removal order to statements that have already been adjudged as defamatory does not cure the constitutional problem because the findings that Bird’s reviews of Hassell were defamatory were not made by a jury. According to Yelp, “the Supreme Court in Balboa Island carefully limited its narrow holding to judgments entered after a jury trial . . . .” (Original italics.)

Still plugging away, Yelp argued that even if Balboa Island applies in this context, the removal order is impermissibly overbroad because Hassell failed to actually prove that Bird wrote the February 2013 review posted under the name “J.D. Alameda, CA,” or the April 2013 review posted under the name “Birdseye B. Los Angeles, CA.” That argument made no sense whatsoever, because the trial court did make a final judicial determination that Bird posted those reviews and, for reasons we have already discussed, the Court of Appeal properly concluded that Yelp did not have standing to challenge that aspect of the judgment.

Yelp’s Immunity from Tort Liability

Finally, Yelp contended that the removal order was barred by section 230 of the CDA, 47 United States Code section 230 (section 230). According to Yelp, section 230 prohibits courts “from ordering website providers like Yelp to remove content provided by third parties.”

1. Applicable Law

Section 230 states, in pertinent part: “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).) “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).)

Section 230 was enacted as an amendment to the CDA. Originally, the primary objective of the CDA was to restrict the exposure of minors to indecent materials on the Internet. However, through the addition of section 230, the CDA acquired a second objective of furthering First Amendment and e-commerce interests on the Internet. (Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1027-1028.)

Accordingly, section 230 has been construed broadly to immunize “providers of interactive computer services against liability arising from content created by third parties.” (Fair Housing Coun., San Fernando v. Roommates.com (9th Cir 2008) 521 F.3d 1157, 1162, fn. omitted; see also Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc. (N.D.Cal. 2015) 2015 U.S. Dist. LEXIS 154716.) As elucidated in a leading decision by the Fourth Circuit, section 230 also “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred.” (Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran).)

The justification for this broad grant of immunity is that it (1) encourages Internet service providers to self-regulate the dissemination of offensive material over their services, and (2) avoids a chilling effect on Internet free speech that would result from exposing companies to tort liability for potentially harmful messages they do not create but that are delivered by using their service. California courts have also construed section 230 to afford interactive service providers broad immunity from tort liability for third party speech. (Barrett v. Rosenthal (2006) 40 Cal.4th 33 (Barrett); Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 802-804 (Delfino); Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830; Kathleen R. v. City of Livermore (2001) 87 Cal.App.4th 684 (Kathleen R.).)

In Barrett, the California Supreme Court followed Zeran and its progeny. Concluding that section 230 confers “broad immunity against defamation liability for those who use the Internet to publish information that originated from another source,” the Barrett court held that the statute “prohibits ‘distributor’ liability for Internet publications.” (Barrett, at pp. 39-40.) The court expressed concern about the “disturbing implications” of the “prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet.” (Id. at p. 63.) However, the court observed that, “[a]t some point, active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source.” (Id. at p. 60, fn. 19.) Aside from that limitation, the court reasoned that applying section 230 to exempt Internet intermediaries from defamation liability for republication furthers congressional intent and that any expansion of tort liability beyond the originator of the defamatory Internet publication “must await congressional action.” (Id. at p. 63.)

Thus, “[t]here are three essential elements that a defendant must establish in order to claim section 230 immunity” from California tort liability. (Delfino, supra, 145 Cal.App.4th at pp. 804.) “They are ‘(1) the defendant [is] a provider or user of an interactive computer service; (2) the cause of action treat[s] the defendant as a publisher or speaker of information; and (3) the information at issue [is] provided by another information content provider.’” (Id. at p. 805.)

2. Analysis

Yelp argued the authority summarized above establishes that the removal order is void. The Court of Appeal disagreed. The removal order did not violate section 230 because it did not impose any liability on Yelp. 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. These circumstances distinguished the present case from Yelp’s authority, all cases in which causes of action or lawsuits against internet service providers were dismissed pursuant to section 230. (See, e.g., Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1098 [CDA “protects an internet service provider from suit” for failing to remove material from its Web site that was harmful to the plaintiff]; Carafano v. Metrosplash.com. Inc. (9th Cir. 2003) 339 F.3d 1119, 1125 [“despite the serious and utterly deplorable consequences that occurred in this case, we conclude that Congress intended that service providers such as Matchmaker be afforded immunity from suit’]; Goddard v. Google, Inc. (N.D.Cal. 2009) 640 F.Supp.2d 1193 [dismissing complaint against Internet service provider for allegedly fraudulent advertisement that appeared on its Web site]; Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561 [sustaining demurrer to causes of action for negligence and strict liability against social networking Web site arising out of sexual assaults inflicted on minors who met their assailants on the site]; Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398 [affirming order granting anti-SLAPP motion to strike claim that the defendant breached its Internet Website user agreement]; Delfino, supra, 145 Cal.App.4th 790 [affirming summary judgment in favor of employer that provided interactive computer service to employee who used the system to make threats over the Internet].)

Neither party cited any authority that applies section 230 to restrict a court from directing an Internet service provider to comply with a judgment which enjoins the originator of defamatory statements posted on the service provider’s Web site. The Court of Appeal did note, however, that section 230 explicitly provides that “[n]othing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section.” (§ 230(e)(3).) As discussed above, California law authorizes a trial court to issue an injunction preventing the repetition of statements that have been adjudged to be defamatory by the trier of fact. (Balboa Island, supra, 40 Cal.4th at p. 1160.) California law also empowers the court to enforce its judgment by ordering that an injunction run to a non-party through whom the enjoined party may act. (Planned Parenthood, supra, 107 Cal.App.4th at pp. 352-353.) Thus, the Court of Appeal concluded that these state law procedures are not inconsistent with section 230 because they do not impose any liability on Yelp, either as a speaker or a publisher of third party speech.

Yelp mistakenly contended that the “trial court” imposed liability on Yelp as an aider and abettor of Bird’s defamatory postings. The “trial court” that conducted the default prove-up hearing and entered judgment against Bird alone (Judge Sullivan) did not find that Yelp was an aider and abettor or impose any liability on Yelp whatsoever. Furthermore, although the trial court that conducted the hearing on Yelp’s motion to vacate (Judge Goldsmith) found that Yelp was an aider and abettor, the Court of Appeal already declared this finding not relevant to the issues before the court, and reiterated that it had no bearing on its analysis.

Yelp also argued that “enjoining a party from publishing content is a remedy that can only follow from a finding of liability, and thus the injunction entered against Yelp cannot survive the robust protection of the CDA.” Again though, the party that was enjoined from publishing content in this case was Bird, and that injunction did follow a finding of Bird’s liability for publishing defamatory reviews about Hassell. Assuming, as Yelp has maintained, that Yelp played no role in the creation of that defamatory speech, an order directing Yelp to remove only those reviews that are covered by the injunction does not impose any liability on Yelp.

Yelp argued that “Section 230 immunity encompasses claims for injunctive relief, and the cases do not distinguish between defendants and non-parties.” However, each case Yelp cited for this proposition involved a failed claim for injunctive relief that was alleged against an Internet service provider defendant in a civil lawsuit. (Kathleen R., supra, 87 Cal.App.4th 684; Noah v. AOL Time Warner, Inc. (E.D.Va. 2003) 261 F.Supp.2d 532; Smith v. Intercosmos Media Group (E.D.La. 2002) 2002 U.S. Dist. LEXIS 24251; see also Medytox Solutions, Inc. v. Investorshub.com, Inc. (Fla. 2014) 152 So.3d 727.)

Yelp argued that cases extending CDA immunity to claims for injunctive relief that are alleged directly against a interactive service provider in a tort action must apply with equal force to an injunction that binds a non-party. Otherwise, Yelp argues, “a plaintiff who wants to enjoin an interactive computer service can nullify its immunity under the CDA by suing the creator of the third-party content and then obtaining an injunction binding the interactive computer service . . . .” This argument ignores the fact that protection against third party liability is the foundation of CDA immunity. As pointed out, Hassell did not allege any cause of action seeking to hold Yelp liable for Bird’s tort. The removal order simply sought to control the perpetuation of judicially declared defamatory statements.

With its arguments, Yelp consistently ignored the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider’s Web site.

Finally, Yelp contended that section 230 bars “any liability for failing to comply with the injunction.” Once again, Yelp’s imprecision masks the real question. If an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court. Generally speaking, “a nonparty to an injunction is subject to the contempt power of the court when, with knowledge of the injunction, the nonparty violates its terms with or for those who are restrained.” (People v. Conrad, supra, 55 Cal.App.4th at p. 903, italics omitted.)

Yelp did not cite any authority which addressed the question whether section 230 would immunize Yelp from being sanctioned for contempt. In the opinion of the Court of Appeal, sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not
impose liability on Yelp as a publisher or distributor of third party content. A “contempt proceeding is not a civil action but is of a criminal nature even though its purpose is to impose punishment for violation of an order made in a civil action.” (Freeman v. Superior Court (1955) 44 Cal.2d 533, 536.) There are cases where Internet service providers were named in contempt proceedings that are consistent with this conclusion. (See, e.g., Blockowicz v. Williams (7th Cir. 2010) 630 F.3d 563; Arista Records, LLC v. Vita Tkach (S.D.N.Y. 2015) 2015 U.S. Dist. LEXIS 107339.) For all of these reasons, Yelp has failed to establish that section 230 or any other law barred the trial court from issuing the removal order under the circumstances of this case. Therefore, Yelp’s nonstatutory motion to vacate the Bird judgment was properly denied.

DISPOSITION BY COURT OF APPEAL

The September 2014 order denying Yelp’s motion to vacate the Bird judgment was affirmed, but the case was remanded to the trial court with the direction to narrow the terms of the removal order in the January 2014 judgment by limiting it to the specific defamatory statements that were listed on exhibit A of that judgment. As I anticipated, the order was a prior restraint because it prohibited Bird from posting about Hassell. Conceivably, Bird could in the future have new dealings with Hassell, and could post comments about Hassell that are true, and that is why prior restraint is prohibited.

YELP DOUBLES DOWN

Since its business model depends on negative reviews, Yelp desperately wanted to maintain the ability to post false and defamatory reviews, so it took the matter up to the Supreme Court.

Yelp has a history of making epically bad litigation decisions. Who can forget the case of Yelp v. McMillan Law Group, where Yelp (seemingly out of retaliation after the McMillan Law Group successfully sued it in Small Claims Court) brought an action against a law firm, claiming that the firm had posted positive reviews about itself, and that as a result Yelp had suffered damages because of the damage to the trustworthiness of its reviews. In doing so, Yelp put all its finances in issue, as well as its algorithm. It quietly walked away from that case.

In a prior article, I discussed at length the contortions counsel for Yelp had to engage in to make its CDA arguments, but in the end those arguments carried the day.

Sort of.

Yelp had argued for much more than CDA protection. It argued that it should have been permitted to argue that the content was not defamatory. In that regard, it failed. The Court made clear that it was ruling only on the third paragraph of the trial court’s judgment, which ordered Yelp to remove the defamatory posts. The opinion did not alter the judgment in any other way, and Bird remains liable for significant damages and must comply with the court’s order to remove the defamatory posts. To assuage their conscious, the Justices made much of the fact that Hassell is not without remedy, since Bird can be jailed if she fails to comply.

In the plurality decision, the Justices concluded:

For almost two decades, courts have been relying on section 230 to deny plaintiffs injunctive relief when their claims inherently treat an Internet intermediary as a publisher or speaker of third party conduct. Certainly in some instances where immunity has been recognized prior to judgment, the plaintiff was in fact defamed or otherwise suffered tortious harm susceptible to being remedied through an injunction. Yet Congress has declined to amend section 230 to authorize injunctive relief against mere republishers, even as it has limited immunity in other ways. (See Pub.L.No. 115-164, §4 (April 11, 2018) 132 Stat. 1253 [amending section 230 to add section 230(e)(5), clarifying that immunity does not apply to certain civil claims and criminal actions associated with sex trafficking].) Although this acquiescence is not itself determinative, it provides a final indication that the dissenting justices are simply substituting their judgment for that of Congress regarding what amounts to good policy with regard to online speech. But that is not our role.

Even as we conclude that Yelp is entitled to immunity, we echo Barrett, supra, 40 Cal.4th 33, in emphasizing that our reasoning and result do not connote a lack of sympathy for those who may have been defamed on the Internet. (Barrett, at p. 63.) Nevertheless, on this record it is clear that plaintiffs’ legal remedies lie solely against Bird, and cannot extend — even through an injunction — to Yelp.

So the decision stands only for the proposition that Yelp cannot be ordered to take down a defamatory post by way of a third party injunction. The Court concluded, in error in my opinion, that even a mere take-down order, which imposes no liability on Yelp, still runs afoul of Section 230.

The opinion was authored by Chief Justice Cantil-Sakauye, with Justices Chin and Corrigan concurring. Sadly, their reasoning does not hold up to close scrutiny, and does not hold them in good stead.

The opinion tries to belittle the reasoning of the dissenters, especially Justice Cuellar, but in doing so it only serves to demonstrate the frustration and inability to refute the reasoning of those dissenters.

The dissenting opinion of Justice Cuellar is the most impassioned, but I found the opinion of Justice Liu to be the most cogent and compelling. For that reason, I set it forth in its entirety here:

DISSENTING OPINION BY LIU, J.

The court expresses “sympathy” for those who have been defamed on the Internet, including plaintiffs Dawn Hassell and the Hassell Law Group, who won a lawful judgment against defendant Ava Bird for defamatory reviews that Bird posted on Yelp. (Plur. opn., ante, at p. 32; see conc. opn. of Kruger, J., ante, at p. 17.) But Hassell is not seeking sympathy. She is seeking a remedy for the damage done to her and her law firm. The trial court provided that remedy in the form of damages against Bird and an injunction ordering both Bird and Yelp to remove the defamatory reviews, and the Court of Appeal affirmed. However, more than four years after the trial court issued its order, Bird’s defamatory reviews remain posted on Yelp. Bird has refused to comply with the injunction, and Yelp claims it is under no legal obligation to comply. Today’s decision agrees with Yelp, thereby ensuring that Hassell will continue to suffer reputational harm from the unlawful postings unless Bird is somehow made to comply.

This “dilemma” (conc. opn. of Kruger, J., ante, at p. 17) is one of the court’s own making. As Justice Cuéllar explains, today’s extension of the Communications Decency Act of 1996 (47 U.S.C. § 230) (section 230) to immunize Yelp is not supported by case law or by the statute’s text and purpose. (Dis. opn. of Cuéllar, J., post, at pp. 7–29.) Section 230 does not immunize Yelp from this removal order issued by a California court in a case where “[n]o claim was ever brought against Yelp seeking defamation or tort liability for its editorial decisions.” (Dis. opn. of Cuéllar, J., post, at p. 18.) Decisions like Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327 are inapposite because they involved lawsuits filed directly against providers of interactive computer services for tort liability. In Barrett v. Rosenthal (2006) 40 Cal.4th 33 (Barrett), we relied on those decisions to conclude that “section 230 exempts Internet intermediaries from defamation liability for republication.” (Id. at p. 63.) We rested our holding on the understanding that “[s]ubjecting service providers to notice liability would defeat ‘the dual purposes’ of section 230, by encouraging providers to restrict speech and abstain from self-regulation. [Citation.] A provider would be at risk for liability each time it received notice of a potentially defamatory statement in any Internet message, requiring an investigation of the circumstances, a legal judgment about the defamatory character of the information, and an editorial decision on whether to continue the publication.” (Barrett at p. 45, italics added.) We emphasized that “[a]ny investigation of a potentially defamatory Internet posting is . . . a daunting and expensive challenge.” (Id. at p. 57, italics added.) Our opinion repeatedly explained that section 230 is intended to protect service providers from investigation and litigation burdens arising from notice of users’ “potentially” defamatory statements. (Id. at pp. 44–46, 55, 57.)

These concerns are not present in this case. 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. The trial court ruled that Bird had defamed Hassell on Yelp, and it directed Yelp to help effectuate the remedy. Yelp’s conduct as a speaker or publisher was never at issue in Hassell’s lawsuit, and the trial court imposed no liability on Yelp for such conduct. Instead, the trial court enjoined Yelp as part of the remedy for Bird’s tortious conduct toward Hassell. A company in Yelp’s position may face burdens associated with determining the “validity or scope” of a removal order or “the manner in which it is implemented.” (Plur. opn., ante, at p. 29.) But these are not the type of burdens contemplated by Barrett or the cases upon which Barrett relied in explaining the purpose of section 230 immunity.

As for Yelp’s due process claim, the Court of Appeal properly clarified that the question here is “whether the trial court was without power to issue the removal order in the first instance.” (Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1357, italics added.) The matter before us is Yelp’s motion to vacate the trial court’s judgment; this is not a contempt proceeding or other action seeking to impose liability on Yelp for violating the injunction. (Ibid. [Yelp’s postjudgment conduct “has no bearing on the question” presented].) Justice Kruger argues that the removal order directed at Yelp violates due process because Yelp was never given its “own day in court” before the order was issued. (Conc. opn. of Kruger, J., ante, at p. 9.) She cites Judge Learned Hand’s opinion in Alemite Manufacturing Corp. v. Staff (2d Cir. 1930) 42 F.2d 832 (Alemite) for the proposition that a court generally cannot “bind any one but a party” and “cannot lawfully enjoin the world at large.” (Id. at p. 832; see conc. opn. of Kruger, J., ante, at p. 3.)
But “[g]eneral propositions do not decide concrete cases” (Lochner v. New York (1905) 198 U.S. 45, 76 (dis. opn. of Holmes, J.)), and the facts of Alemite are instructive. The plaintiff there won a patent infringement suit against John Staff and obtained an injunction “against John, ‘his agents, employees, associates and confederates,’ enjoining them from infringing, or ‘aiding or abetting or in any way contributing to the infringement.’ ” (Alemite, supra, 42 F.2d at p. 832.) “At the time of the suit [John’s brother] Joseph was a salesman for John, but later, having left his employ, he set up in business for himself, and was proved to have infringed the patent. The plaintiff then began proceedings in the original suit to punish Joseph for contempt, asserting that he was bound by the decree, and that his new business was a violation of the writ.” (Ibid.) The Second Circuit held that the injunction in the action against John could not extend to Joseph’s new act of infringement. (Id. at p. 833.) Noting that “[t]he District Judge found that John ‘had no connection or part whatever in the acts of contempt hereby adjudged against Joseph Staff’ ” (id. at p. 832), Judge Hand explained that “[t]he District Court had no more power in the case at bar to punish [Joseph] than a third party who had never heard of the suit” (id. at p. 833).
The injunction in Alemite could not reach Joseph, a nonparty, because his infringement of the same patent was entirely independent of John’s original act of infringement. It was in that sense that Judge Hand said Joseph was a stranger to the underlying suit. The same is not true here. The trial court did not enjoin Yelp “ ‘from engaging in independent conduct with respect to the subject matter of th[e] suit.’ ” (Conc. opn. of Kruger, J., ante, at p. 6.) Yelp was directed to remove Bird’s defamatory reviews of Hassell, the very subject matter of the underlying suit. The trial court did not enjoin Yelp from posting any other defamatory reviews of Hassell, even if such reviews were identical to Bird’s. This is fully consistent with Judge Hand’s admonition that “it is not the act described which the decree may forbid, but only that act when the defendant does it.” (Alemite, supra, 42 F.2d at p. 833.) The defendant here is Bird; the unlawful acts are Bird’s defamatory reviews; and the injunction directs Yelp to remove only Bird’s defamatory reviews, not anyone else’s. The removal order illustrates the rule that an injunction may extend to a nonparty “when [the nonparty] has helped to bring about . . . what [the injunction] has power to forbid, an act of a party.” (Ibid.)

In saying that the removal order enjoins Yelp from engaging in “independent conduct,” Justice Kruger strays from the meaning of that term as used in the cases she cites. (See Additive Controls & Measurement Sys. v. Flowdata (Fed.Cir. 1996) 96 F.3d 1390, 1395 (Flowdata); Paramount Pictures Corp. v. Carol Pub. Group, Inc. (S.D.N.Y. 1998) 25 F.Supp.2d 372, 375–376 (Paramount Pictures).) In those cases, as in Alemite, a plaintiff obtained an injunction against one or more defendants for patent or copyright infringement and thereafter sought to bind nonparties to the injunction based on the nonparties’ acts of infringement. This was prohibited, the courts explained, because the nonparties had engaged in their own acts of infringement separate and apart from the defendants’ infringing acts that were the subject of the injunction. (See Flowdata, at pp. 1395–1397; Paramount Pictures, at pp. 375–376.) “Independent conduct” in this context means conduct by a nonparty that is allegedly unlawful independent of the defendant’s wrongdoing; it does not encompass conduct by a nonparty that facilitates the defendant’s wrongdoing. Indeed, Flowdata recognized — with no misgivings about due process — that courts have authority to issue a directive to a nonparty when “ ‘necessary or appropriate to effectuate and prevent the frustration of orders’ ” directed at a party. (Flowdata, at p. 1396, quoting U.S. v. New York Tel. Co. (1977) 434 U.S. 159, 172 [court may require telephone company to cooperate with installation of pen register device].) Alemite, Flowdata, and Paramount Pictures would be more on point if the trial court had ordered Yelp to remove identical reviews posted by people other than Bird. But the removal order targets only the reviews written by Bird, the defendant in the underlying suit.

This court long ago observed that “it has been a common practice to make the injunction run also to classes of persons through whom the enjoined party may act, such as agents, servants, employees, aiders, abetters, etc., though not parties to the action, and this practice has always been upheld by the courts, and any of such parties violating its terms with notice thereof are held guilty of contempt for disobedience of the judgment.” (Berger v. Superior Court (1917) 175 Cal. 719, 721 (Berger).) Justice Kruger doubts that “Bird acts, or has ever acted, ‘through’ Yelp in the sense relevant under Berger” (conc. opn. of Kruger, J., ante, at p. 7) and suggests that Yelp’s conduct here is merely passive. But such a characterization of Yelp’s role blinks reality.

If Bird had gone to the town square every day to shout defamatory comments about Hassell, or if Bird had made those comments to 50 friends, it is doubtful this case would be here today. Instead, Bird posted a review on Yelp, a website that attracts tens of millions of visitors every month. Yelp is an interactive service provider dedicated to inviting people like Bird to post reviews of local businesses and inviting users to search, sort, and read those reviews (all while exposing website visitors to advertisements). Yelp formats the reviews, makes the reviews searchable, and aggregates reviews of each business into a rating from one to five stars. Yelp’s Terms of Service make clear to reviewers that “[w]e may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms.” The Terms of Service also state that Yelp owns “visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Site Content, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site excluding Your Content, User Content and Third Party Content.”

The treatment of user comments by other websites may be more passive, and I do not suggest that any website that posts user comments may be subject to a removal order like the one here. But Yelp’s relationship with reviewers like Bird is not passive. Even if Yelp was not Bird’s agent or servant (cf. Ross v. Superior Court (1977) 19 Cal.3d 899, 905–909 (Ross); Ex parte Lennon (1897) 166 U.S. 548, 555–556), it is evident that Bird acted through Yelp in the most relevant sense: It was Bird’s defamation of Hassell, facilitated by Yelp’s willing and active participation, that the trial court sought to enjoin. The removal order directed at Yelp is an example of the “common practice” of “mak[ing] the injunction effectual against all through whom the enjoined party may act, and to prevent the prohibited action” — here, the continued display of Bird’s defamatory reviews on Yelp — “by persons acting in concert with or in support of the claim of the enjoined party.” (Berger, supra, 175 Cal. at p. 721, italics omitted.)

Justice Kruger suggests that whether Bird acted through Yelp in a manner that made Yelp a proper subject of the injunction is an issue on which Yelp had a right to notice and an opportunity to be heard before the injunction issued. (Conc. opn. of Kruger, J., ante, at p. 7, fn. 3.) But I agree with the Court of Appeal that “a trial court does have the power to fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonparty to the original proceeding.” (Hassell v. Bird, supra, 247 Cal.App.4th at p. 1357.)

Again, Alemite is instructive. After obtaining an injunction “against John, ‘his agents, employees, associates and confederates,’ enjoining them from infringing, or ‘aiding or abetting or in any way contributing to the infringement,’ ” the aggrieved plaintiff initiated an action “to punish Joseph for contempt, asserting that he was bound by the decree” as a nonparty within the ambit of the injunction’s terms. (Alemite, supra, 42 F.2d at p. 832.) It is true that Joseph had notice and an opportunity to be heard in the contempt proceeding, and he convinced the district court that his new act of infringement had no connection to John’s prior act of infringement that was the subject of the injunction. But suppose the district court had concluded otherwise and found Joseph in contempt. That determination would rest on the premise that the injunction validly applied to Joseph when it was issued (provided he had notice of it, which he did). If Joseph could not have been bound by the injunction because he had no notice or opportunity to be heard before it was issued, then he could not have been punished for contempt under any scenario. Joseph could only have been bound by a new injunction after being heard on the nature of his conduct; he could not have been punished for violating the existing injunction. Yet Alemite provides no support for this view.

Instead, Judge Hand recognized the validity of punishing a nonparty who “has helped to bring about” the prohibited act of a party as a narrow exception to the general rule that an injunction can apply only to persons who have had “their day in court.” (Id. at p. 833.)
In Ross, supra, 19 Cal.3d 899, we rejected the local supervisors’ claim that they could not be held in contempt for violating an injunction directed at state officials and their “ ‘agents’ ” (id. at p. 906) because they were not parties to the suit in which the injunction was issued and “received no notice and were afforded no opportunity to defend that action” (id. at p. 905). We determined that the local supervisors were, by statute, “agents” of the state officials for purposes of administering welfare benefits, notwithstanding the supervisors’ arguments to the contrary. (Id. at pp. 906–909.) The supervisors had no opportunity to present their arguments that they were not “agents” of the state before the injunction issued — yet we upheld the finding of contempt because they “wilfully refused to comply with the judgment.” (Id. at p. 904.) In other words, the injunction was binding on the supervisors when issued, even though they had no notice or opportunity to be heard beforehand. Justice Kruger does not explain how, under her view, the supervisors in Ross could have been bound.

The only difference here is that the injunction names Yelp instead of using a general phrase to refer to nonparties (e.g., “Bird’s agents, employees, associates, confederates, aiders and abettors”) as in Alemite and Ross. But that makes no difference to the due process inquiry. Yelp may yet argue in a contempt proceeding that its relationship to Bird’s tortious conduct was not sufficient to justify the trial court’s removal order. But if that argument were to fail, the fact that Yelp — like the supervisors in Ross — had no notice or opportunity to be heard before the trial court issued the injunction would not preclude a finding of contempt. Such a finding would necessarily mean the injunction was valid when issued.

Finally, the nature of Yelp’s relationship to Bird that makes Yelp a proper subject of the injunction is not that of a “publisher or speaker” for purposes of section 230 immunity. Yelp’s obligation to remove Bird’s defamatory reviews does not stem from any judgment as to the legality of any editorial decision by Yelp to publish Bird’s speech. As noted, the only issue in the underlying suit was whether Bird, not Yelp, had defamed Hassell and her firm; the suit did not impose on Yelp any burdens of defending itself against liability for “potentially defamatory” statements. (Barrett, supra, 40 Cal.4th at p. 45.) Whether Yelp could claim section 230 immunity in a contempt proceeding on the ground that its continued refusal to remove Bird’s reviews is a matter of editorial judgment, notwithstanding a state court judgment finding the reviews defamatory, is a matter not before us.

The Court of Appeal got it right: Yelp has no statutory immunity from the removal order, and the removal order directed at Yelp does not violate due process of law. I would affirm the judgment of the Court of Appeal.

— LIU, J.

Although only persuasive authority, the dissenting opinions (as well as the concurring opinion of Justice Kruger) make clear that Yelp has managed to open a new can of worms when it was not ready to go fishing.

For now, it is the law in California that Yelp cannot be ordered, as a third party, to remove a review because the plurality found that is a form of liability, and therefore runs afoul of the CDA. But the opinion is clear that is only because doing so because it improperly treats Yelp “as a publisher or speaker of third party conduct.” The aforementioned worm can comes from the fact that the dissenters have indicated a willingness to treat Yelp as a publisher if it interferes with the ability of the user to remove the post.

Following the model of Rip Off Report, Yelp’s Terms of Use provide that it reserves the right to prohibit reviewers from removing their own content. The comments of the Justices during oral argument and in the dissenting opinions make clear that they will have none of that, and the plurality do not offer any disagreement. As stated by Justice Cuellar:

A website’s willful refusal to comply with an injunction, where compliance is feasible, may also provide evidence to support a finding that the service provider aided, abetted, or acted in concert, combination, or collusion with an enjoined defendant. (See Ross, supra, 19 Cal.3d at pp. 904, fn. 4, 916.) Evidence that a website prominently featured a defamatory review –– to attract viewers or for other reasons –– after it had notice of a defamation judgment and injunction directing the speaker to remove the defamatory post may indicate the provider has acted to violate the injunction in support of the enjoined party. A provider’s actions to maintain unlawful Internet posts in concert with a defendant may support a factual finding of aiding, abetting, or acting in concert or in support of the defendant. So could situations where a defendant has reason to believe her content is unlawful but is encouraged by a provider to retain the content, or where a defendant attempts to remove unlawful content, but the provider retains the content citing its right to use, display, or promote the content under its terms of service. The plurality opinion appears to maintain in contrast that section 230 grants Yelp immunity from compliance with the injunction even where Yelp is found to have aided, abetted, or acted in concert with or support of Bird to violate the injunction. (Plur. opn., ante, fn. 14 at pp. 25-26.) We are unpersuaded. Neither the plurality opinion’s logic nor its reliance upon a nonbinding federal case support the conclusion that section 230 would bar as “publication decisions” all the conduct that a trial court might rely on to make valid factual findings that action in concert or collusion occurred between a service provider and a defendant.

In conclusion, Yelp won a narrow victory on the issue of third-party injunctions, but in doing so laid the groundwork for abolishment of any website’s terms of use that claim the right to maintain posts against the will of the person who posted the content. At least in that sense, today’s ruling holds hope for a more honest marketplace of ideas.

California Supreme Court Puts Counsel for Yelp Through the Grinder in Hassell v. Bird

The tale of Hassell v. Bird.

I previously published a long article on the case of Hassell v. Bird, and I was invited to file a friend of the court brief in the California Supreme Court after it took up the case.

My original article provides much greater detail, but briefly for purposes of this article, Bird defamed a law firm – the Hassell Law Group – in a Yelp review. Hassell sued Bird, and the court found that the Yelp “review” was false and defamatory, and ordered Bird to take it down. But then comes a twist unique to this case. Knowing that Bird would be unlikely to comply with the order, the court also ordered Yelp to remove the review, even though Yelp had never been a party to the action.

It is not uncommon for court orders to include persons or entities who were not parties to the action, if some action by those third parties is necessary to effectuate the order. In a typical renter eviction action, for example, only the known tenant will be named in the action, but the eviction order will apply to anyone occupying the residence, in case the tenant allowed others to move in, subleased the property, etc.

Here, the trial court felt that it was reasonable to require Yelp to take down the review, even though it was not a party to the action. The review had been deemed to be defamatory, and it was not Yelp’s speech that was being attacked, so certainly Yelp would have no horse in the race. Indeed, presumably Yelp wants the reviews posted on its site to be as truthful as possible, so it should welcome an order that would result in the removal of a false review.

But Yelp’s business model depends on negative reviews, so it cried foul. Even after the Court of Appeal found that the judge’s order was entirely proper, Yelp went to the Supreme Court to fight for the right to publish false and defamatory reviews.

Today, I attended the oral argument held in that case, in front of the seven justices of the California Supreme Court.

It was pretty painful to watch, given the positions counsel for Yelp was forced to defend.

Yelp was represented by Thomas Burke, from a firm called Davis Wright Tremaine. Burke did a completely competent job of presenting Yelp’s argument, but the problem for him (and Yelp) was that he was forced to present a logically indefensible argument while fighting for an untenable result. It made for oral argument that was painful to watch.

But first, a little legal background.

Before getting to the Burke’s time in the meat grinder, allow me to set the legal stage.

Section (c)(1) of the Communications Decency Act (“CDA”) provides that “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.” It is these few words that give immunity to sites such as Yelp for the information published by third parties.

But often forgotten is section (e)(1), which provides that “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 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.”

Everyone agrees that Yelp cannot be sued for the reviews posted by its users. If at the outset of Hassell’s action against Bird, it had decided to include Yelp as a defendant, just for the purpose of seeking injunctive relief (the removal of the review), there is no question that Yelp would have brought an anti-SLAPP motion, claiming that the lawsuit against Yelp runs afoul of the CDA.

But simply including Yelp in the order to remove the review is the one means available for removing a review that does not run afoul of the CDA. We want to maintain the “vibrant and competitive free market” of the internet, as the CDA puts it, and that would be irreparably harmed if sites such as Yelp had to defend every challenged posting, or even had to appear in actions seeking injunctive relief. The best solution for all concerned is to let the defamed party duke it out with the defamer, and only involve Yelp when and if the content is deemed to be defamatory.

Some have argued even that is too much. They contend that requiring Yelp to deal with the many takedown orders will be too onerous, and could chill free speech. Respectfully, that argument is pure horse dung. Every site that allows third parties to post content brings with it a certain amount of oversight and maintenance. If I were to post the entire Harry Potter series by way of reviews on Yelp, no one would seriously argue that Yelp has no duty to remove that copyrighted material just because it was posted by a third party. More commonly, someone will post a copyrighted photo, and the site receives a DMCA takedown notice, to which it must comply or face liability.

Few people will have the time, energy and resources to take a case all the way to trial in order to have a Yelp review adjudicated as defamatory. The number of takedown orders will be relatively small.

Yelp’s crazy arguments.

So now you have the legal background. Let’s get to Yelp’s crazy arguments.

As you saw above, Yelp can’t be sued directly for the third party content, so Hassell v. Bird really just comes down to whether including Yelp in the injunction runs afoul of the CDA, keeping in mind that the CDA states that it does not trump State law so long as that law is consistent with the CDA.

Yelp instead made the argument about due process, arguing that the reviews are also its speech, and therefore it should have been permitted to make its own First Amendment arguments. It was deprived of that ability by not being named in the action, Yelp argued.

Well, that argument naturally invokes the question, “Does Yelp WANT to be named in lawsuits?”, which the justices asked in about 12 different ways, never receiving a straight answer.

So, on the one hand Burke was arguing that Yelp should have been named in the action so it could have its day in court, but when asked how Yelp would have responded to being named in the action, Burke eventually and painfully had to admit that Yelp would likely respond with an anti-SLAPP motion.

Sorry for all the whipsawing, but that was the nature of the argument. “We should have been named in the action, but it we had been named in the action we would have immediately brought a motion to be removed from the action,” was basically the entire Yelp argument.

The point that was sadly never made clear during argument was that Yelp being in the action would not have changed the result one whit. If Hassell had attempted to navigate a narrow course between including Yelp in the action, while not running afoul of the CDA, perhaps by including Yelp only in a claim for injunctive relief, it would have failed. Yelp would have brought a successful anti-SLAPP motion, claiming it cannot be sued for third-party content.

But that result would not have dictated any different result as to the eventual order. Yelp might be out of the action, but the trial court would still be faced with fashioning an order best designed to getting the review removed, and the only way to absolutely guarantee the removal of the review would be by ordering Yelp to do so.

One interesting exchange in that regard came from (as best I recall) Chief Justice Tani G. Cantil-Sakauye. Burke was attempting to make the argument that the injunction against Yelp was unnecessary, because Bird can remove her own review, and to date Hassell had not even attempted to force her to do so with a contempt proceeding. But the Chief Justice pointed out that by Yelp’s own terms of use, there is no guarantee that it will allow users to remove their own reviews.

How, then, is a defamed party to remove content from Yelp?

The Justices expressed concern even after a review has been deemed to be defamatory, and the defamer has been ordered to take it down, Yelp can just thumb its nose at the courts and say, “Well, that’s cool and all, but we choose to keep it up.”

As Justice Leondra R. Kruger put it, “So Section 230 is basically a license to continue to publish unlawful or defamatory content in perpetuity?”

Counsel for Hassell has an easier time.

Counsel for Hassell, Monique Olivier, from the firm of Duckworth Peters Lebowitz Olivier, had a much better time of it, given that she was not forced to take such untenable positions. Still, it was not a walk in the park for her either.

Oliver was walked into a bit of a corner by the Chief Justice. Oliver quite properly explained that Hassell did not name Yelp in the action because doing so would have been met with an anti-SLAPP motion. The Chief Justice took that to be basically an admission that Hassell had not named Yelp to avoid the process, stating “well, doesn’t Yelp have the right to appear and defend on that basis?”

That misses the point. The best analogy I can come up with is an action against trust property. When you sue for property held by a trust, you sue the trustee, not the trust. The trust is not a proper party, but the eventual order will order the trustee to do something with the trust property. If I explained to the court that I did not name the trust because doing so would have resulted in a motion to strike or demurrer, that is not an admission that I am somehow gaming the system by keeping the trust out of the lawsuit. It is just a recognition of the reality that the trust cannot be name.

So it was here. Hassell can’t include Yelp in the action, but it is sophistry for Yelp to then argue that it should have been included so it could have its day in court. Its day in court would have consisted entirely of arguing that it should not have been named. The Chief Justice may have missed that point.

Justice Goodwin Liu appeared to get it, based on his questions. Burke was making the specious argument that had Yelp someone been named in the action, it would have been afforded the opportunity to show that the review was not defamatory. This argument was specious both because Yelp would have never reached that point, and because Yelp had no ability to show one way or the other whether the speech was defamatory, since it possesses no knowledge of the representation. But Liu called Burke’s bluff, and assumed the fiction that Yelp would appear and argue that the review was not defamatory.

“But what if you had done so, and the result had been the same, with the trial court concluding that the review was defamatory and ordering Yelp to take it down. Would you have honored the order?”

Burke conceded, with sufficient contingencies, that Yelp would likely not follow the order and appeal. Justice Liu (and others) repeatedly asked Burke what Yelp would have done if it had been named in the action.

“It sounds like you’re having your cake and eating it too,” Liu said.

“Quality of the judgment.”

Burke got walked into his own corner on one final point.

Since Bird utterly failed to participate in the process, the judgment in Hassell v. Bird came from a default prove-up hearing. There was no question that she knew about the action because she discussed it on social media, but she nonetheless chose to ignore it.

In its appeal brief, Yelp had tried to make the argument that the holding of Balboa Island (the Supreme Court case holding that a court may enjoin speech after it has been determined to be defamatory) should not apply to a default judgment. I pointed out the fallacy of that argument at the time. Such a determination cannot turn on the willingness of the defendant to participate on the process.

Counsel for Yelp didn’t listen to me. Justice Liu set a trap, asking if Burke’s analysis was based in part of the “quality of the judgment” — it having come from a default prove-up. Burke fell into the trap (or at a minimum stayed consistent with the papers), contending that yes the nature of the judgment further militates against its validity. I anticipate there will be language in the opinion, making clear that a default judgment is not somehow lesser in value than a court trial.

My prediction of the result.

The evil part of me wants the court to hoist Yelp on its own petard. Yelp says it wants the opportunity to defend the reviews of its users. The Court could fashion a procedure, whereby Yelp can be named in actions for injunctive relief, so long as no liability is sought as to Yelp. Yelp would be free to appear in the action to assert its self-proclaimed First Amendment right to leave up defamatory posts, or it could ignore the action and let the parties involved adjudicate whether the review is defamatory, and then follow any order issued by the court.

But I fear the case could go sideways because of the completely unnecessary statements of the trial judge. When Yelp brought a motion attacking the injunction, the trial judge stated that Yelp was liable as an “aider and abettor.” This seemed to really bother some of the Justices, since it is contrary to the CDA. To hold that Yelp is liable as an aider and abettor to the third party who posted the defamatory review is antithetical to the intent and wording of the CDA. Counsel for Hassell properly argued that the judge’s ruling was basically a throwaway statement, since it did not turn on that determination, and in fact the Court of Appeal did not use that as a basis to uphold the decision of the trial court, but some of the Justices seemed unconvinced.

I think the Supremes might punt, and conclude that under proper circumstances Yelp could be made to obey a takedown order, but find that “aider and abettor” conclusion keeps this from being such a case.

WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS

Since free speech and internet defamation are our primary practice areas, and since it is a rather niche practice, we get many calls and emails from businesses that have been defamed by a false Yelp review. We also get may calls from those who have posted Yelp reviews and have been threatened with legal action, but that is an article for another day. For purposes of his article, I will discuss . . .

WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS

I wrote a similar article two years ago, but I want to update and expand on what I said previously, attempting to provide a more all encompassing review of your options when dealing with a false Yelp review.

This only applies to verifiably false and defamatory reviews.

I repeat this message over and over again on this blog, but so as to make this a standalone article, let me express again that if someone writes a critical but honest Yelp review about your business, I won’t help you to get rid of it. Nothing to see here. Move along. The marketplace of ideas is not promoted with defamatory speech, but neither is it promoted with censorship.

Note also that a review isn’t actionable just because it is false. If someone says you graduated from Arizona State University, but you really graduated from the University of Arizona, they have told a lie about you, but it isn’t defamatory because the lie doesn’t (necessarily) cast you in a bad light. Further, the statement must be verifiably false, and can’t be an opinion. If a patient writes that a doctor has a “terrible bedside manner”, that term is too imprecise to ever prove that it is false. It is a matter of opinion.

But a significant percentage of Yelp reviews are false and defamatory. We have rooted out businesses with employees who are tasked with the job of writing false reviews about competitors. Even down to the individual level, it is often the case that someone will have an honest beef with a business, but when it comes time to sit down and write the review, they feel compelled to embellish.

My favorite example as of late was the plastic surgeon we represented. The woman was not happy with some work he had performed. Fine. If she had taken to Yelp and written that she was unhappy with her face lift, I would have defended her right to post that review. She is entitled to her opinion. But she added to her review the tale of how, when she went to visit a medical malpractice attorney, there were four other women sitting in the attorney’s office. They got to talking, and it turned out that all five of them were all there to sue the same doctor! My god, the man must be a butcher. If there were five patients in that one lawyer’s office on just one day, how many women must be in other lawyers’ offices. She added that she learned from the attorney that this doctor was under investigation by the medical board, and would shortly be losing his license.

But could she identify a single one of the other women? Of course not. Could she even name the medical malpractice attorney who she supposedly visited? Of course not. Had anyone ever actually told her that the doctor was being investigated, or that he was about to lose his license? No. She conceded that it was all made up, as was most of the review. She was so angry at the doctor when she was writing the review that she wanted to make sure no other patients went to him, and felt like an evenhanded review about her experience wouldn’t accomplish that task.

It is this sort of review – one containing verifiably false facts that charge the business with illegal, immoral, unethical, or unprofessional conduct – that can be challenged and removed from Yelp. What follows is a very in-depth review of what you can do when someone posts that sort of false and defamatory review.

First, allow me to get some preliminaries out of the way, and then I’ll move onto the solutions for false Yelp reviews.

Where does Yelp get off even listing my business? I never authorized it to do so! Can I force it to remove my business?

I get asked this question all the time, and the answer is no, so let’s get it out of the way. Callers want to retain me to force Yelp to remove their business listing, to prevent anyone from posting comments about the business. The callers think there is some sort of right of privacy that prevents a website from discussing their business unless the business has authorized it. Would you want to live in a world where you can’t offer your opinions about a business, good or bad, unless the business authorizes you to? That would certainly be a tremendous boon for unethical businesses.

So, no, Yelp can’t be forced to remove your listing. Yelp is free to set up a page for every business in existence so that people can discuss any business. And no, it doesn’t violate any trademark or copyright for them to do so.

Can I sue Yelp directly for the false review?

The answer to this question seems to be pretty well known by now, but I still get calls about it. No, under the Communications Decency Act (“CDA”), a website cannot be sued for information posted by a third party. When the internet came along, Congress decided to favor open discussions on the web. Congress wanted website operators to be able to offer the opportunity for website visitors to post comments. It recognized that if website operators could be held liable for the comments posted by visitors, the swift and immediate reaction would be that no websites would offer public forums. Congress created the CDA, which immunizes website operators from ANY liability for statements posted by third parties. That doesn’t change, even if you notify the website that something posted there is defamatory.

In a minute I’ll be discussing the case of Hassell v. Bird, in which the court ordered Yelp to remove a defamatory post. The case is currently being considered by the California Supreme Court, which may hold that Yelp can be named in an action which seeks removal of a defamatory post, for injunctive purposes only, but that remains to be seen.

OK, with the preliminaries out of the way, let’s see what you can do about a false and defamatory Yelp review.

Step One – Decide if you really need to do anything.

A business with 50 positive reviews will likely not be hurt by a single false review. Everyone understands there will always be trolls and background noise, and that no business can make every single customer happy. But a business with only five reviews is in a much different situation. There, a bad review will likely appear on the first page of Yelp’s results, and depending on the nature of the business, many potential customers will simply elect to move on rather than to take a chance on a business with a really bad review.

But with that said, don’t let your ego take over. It may be a real source of pride that you had nothing but five star reviews, and this one false review is driving you crazy, but sometimes it’s best to listen to Queen Elsa and Let It Go.

Your better solution may be to encourage your customers to post more reviews, in order to water down the false review, while perhaps pursuing some of the additional steps that follow.

Step Two – Try to get Yelp to remove the review by showing that it violates its Terms of Service or Content Guidelines.

This is not likely to succeed, but it is a reasonable step, and its chances of success depend on the wording of the review. But first, a little background.

Yelp is not your friend. Yelp’s business model depends on negative reviews, so they are not incentivized to remove false reviews. To give you an idea how far Yelp will go to maintain false reviews, in a recent case (Hassell v. Bird), after determining at trial that a review posted on Yelp was false and defamatory, the judge ordered Yelp to remove the review. Yelp certainly wants only honest reviews, so it must have been stoked to learn that a false review had been discovered so it could remove it, right? Au contraire mon frère.

Yelp appealed the matter to the California Court of Appeal, arguing that it should not be compelled to remove false reviews. After the Court of Appeal ruled against Yelp, it appealed it to the California Supreme Court. That case is now pending. Yes, Yelp has literally taken its right to maintain false and defamatory reviews all the way to the Supreme Court, even though its own Terms of Service state that defamatory reviews are prohibited.

So, don’t think for a second that you will be able to go to Yelp with evidence of a false review, and Yelp will investigate. In a perfect world, Yelp would have some sort of reviewing body to consider such evidence, but I recognize that isn’t feasible. Here’s why.

Let’s say you are an electrician, and after doing a perfectly wonderful job of installing a 220 volt line to a homeowner’s new laundry room, they trash you online because the homeowner’s Uncle Albert told him your work was not up to code. But you have proof that it was up to code, as evidenced by the sign-off from the city and all the receipts you have from Home Depot showing you bought the proper gauge of wire and other parts. You send your evidence to Yelp, assuming they will consider the matter.

How would Yelp review that claim? The fact that the city signs off on work is never proof that it was up to code. The inspector might have missed something. The receipts you have from Home Depot could be for parts from another job. Even if you provided a report from an independent electrician, stating that the work was perfect, how would Yelp test the veracity of that report? You may have paid your Uncle Buck to prepare a false report.

The only way Yelp could confirm your claim with any certainty would be to hire its own electrician, and even that presents a problem. Sometimes even experts can’t agree. I am defending a Yelper right now (while Yelp is evil, the people who post reviews are not necessarily so and sometimes need to be defended), who posted a completely honest review about his accountant, stating that the accountant made a mistake on his taxes. The accountant sued him for defamation, claiming he had not made any mistakes. Our expert said the accountant screwed up, and their expert said he didn’t. Back to our electrician, even if the expert hired by Yelp determined that the wiring was fine, that doesn’t necessarily make is so. Only a vigorous review of all of the facts via the legal process can come close to determining whether the work was up to code.

Obviously Yelp cannot hire an expert every time someone claims a review is false, so we can’t really fault them for failing to do so. The situations that frustrate me, though, are when Yelp turns a blind eye toward obviously false reviews.

For example, sometimes businesses will post multiple fake reviews about a competitor. These situations are usually pretty easy to spot, because the reviews will all be posted on the same date, from accounts that have posted few or no other reviews. Typically, all the accounts will have been created using the same computer and internet service provider, so they will all have come from the same IP address. It would take Yelp about one minute to check to seek if the reviews were all posted from the same IP address. Heck, it wouldn’t even take them one minute because they could build into their algorithm to flag multiple reviews from the same IP address for evaluation, but they are not interested in doing so. When I have asked Yelp to do so for clients, they have responded that since there is the chance that multiple reviewers just happened to go to the same internet café on the same date to review the same business, Yelp can’t be certain they were all posted by the same person. (Yelp’s attorney didn’t put it in those exact terms, but that was the ridiculous gist.)

Look at the entire mindset of Yelp. When you read a review on Yelp, you are given three choices to rank the review. You can rank it as “useful”, “funny”, or “cool”. It’s as though every review has merit, and all you can do is promote them. Unless the business has a Yelp business account, it can’t respond to the review. On Amazon, by comparison, you are asked whether or not the review was helpful, anyone can comment on the review, explaining why it does not ring true, for example, and following every review is a link to “report abuse”. Best Buy, Walmart, and Newegg are all set up in similar fashion.

Why doesn’t Yelp afford the ability to respond to a review? Isn’t that kind of a no-brainer; to create a dialog between the reviewer, community and the business? Again, it comes down to Yelp’s business model. A business must have a Yelp business account in order to respond to reviews (even to say thanks for a good review).

But with all that said, even though Yelp will fight to the death to maintain a defamatory review, it is sometimes open to removing reviews that violate their Terms of Service in other ways.

Here are the restrictions listed in Yelp’s Terms of Service:

You agree not to, and will not assist, encourage, or enable others to use the Site to:

  • Violate our Content Guidelines, for example, by writing a fake or defamatory review, trading reviews with other businesses, or compensating someone or being compensated to write or remove a review;
  • Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
  • Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
  • Promote a business or other commercial venture or event, or otherwise use the Site for commercial purposes, except in connection with a Business Account and as expressly permitted by Yelp;
  • Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Site’s search results or any third party website;
  • Solicit personal information from minors, or submit or transmit pornography; or
  • Violate any applicable law.

In addition to these Terms of Service, Yelp also publishes Content Guidelines, which are as follows:

  • Inappropriate content: Colorful language and imagery is fine, but there’s no need for threats, harassment, lewdness, hate speech, and other displays of bigotry.
  • Conflicts of interest: Your contributions should be unbiased and objective. For example, you shouldn’t write reviews of your own business or employer, your friends’ or relatives’ business, your peers or competitors in your industry, or businesses in your networking group. Business owners should not ask customers to write reviews.
  • Promotional content: Unless you’re using your Business Owners Account to add content to your business’s profile page, we generally frown upon promotional content. Let’s keep the site useful for consumers and not overrun with commercial noise from every user.
  • Relevance: Please make sure your contributions are relevant and appropriate to the forum. For example, reviews aren’t the place for rants about a business’s employment practices, political ideologies, extraordinary circumstances, or other matters that don’t address the core of the consumer experience.
  • Privacy: Don’t publicize other people’s private information. Please don’t post close-up photos or videos of other patrons without their permission, and please don’t post other people’s full names unless you’re referring to service providers who are commonly identified by or commonly share their own full names.
  • Intellectual property: Don’t swipe content from other sites or users. You’re a smart cookie, so write your own reviews and take your own photos and videos, please!
  • Demanding payment: Beyond simply asking for a refund to remedy a bad experience, you should not use removing or posting your review as a way to extract payment from a business, regardless of whether you’ve been a customer.

Does the Yelp review make clear that the person never actually patronized the business?

Although it’s not specifically listed as a content guideline, it seems that the most common basis that businesses are able to get reviews removed is when it is clear from the content of the review that the poster never actually visited the business.

For example, a doctor who does Botox injections might get a one-star review that states, “Only a crazy, vain person would allow a doctor to inject poison in their face. Accept your frown lines!” That person is not offering any review of the business, but rather is just venting on the nature of the business. Again, however, don’t think Yelp will consider your evidence that the person was never a customer. That fact must be obvious from the wording of the review.

Also, sometimes Yelp is open to removing (and when I say “removing”, more often Yelp just moves the review to the filtered section, so it is still accessible) a review that is blatantly intended to promote a competitor. Something like, “Their pizza is really greasy. You should go to Mario’s Goodtime Pizza at 123 Main Street, where the pizza is much better, and just $7.99 for a large, two-topping on Tuesdays, and happy hour is from 5 to 7 every day.”

Is the review threatening or invasive?

Even Yelp has its limits, and it may remove a review that is obviously posted for retaliatory purposes. These reviews contain little or no information about the business, but rather are attempts to hurt the business or its owners. It may say something like, “Don’t do business with this company. The owner is a home wrecker. After 18 years of marriage, she had an affair with my husband. If you live near her home at 123 Main Street, you should drop by and tell her what you think about sluts.”

Can I sue Yelp for failing to follow its own Terms of Service and/or Content Guidelines?

Not a terrible question, but for a number of reasons, the answer is no. From a conceptual standpoint, when a website posts Terms of Service or Terms of Use, those are the rules it is imposing on its users, not itself.

But even if you could make the argument that Yelp’s Terms of Service create an enforceable agreement, then you are bound by ALL the terms. Yelp’s Terms of Service state that defamatory speech is prohibited, but they also contain the following language:

We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.

Step Three – Decide if you want to engage with the defamer.

Assuming you know the identity of the defamer, you need to decide if communication will do any good. In the case of an honest, but negative, review, it makes good sense to contact the customer and ask, “What can we do to make this right?” But in the case of a false review, you are dealing with a person who has already shown they lack integrity, since they lied about your business. Too often, that type of person will use the communication against you, returning to Yelp to state that you are now harassing them.

Step Four – Respond with a letter from an attorney.

If you feel that the review must be addressed, a letter from an attorney can be very effective at removing false reviews. This presumes, of course, that the review is from a real customer, and that you can identify the customer. For the reasons already stated, I won’t send a letter to a Yelper, if the review is just opinion. The point of a letter from an attorney is to demand removal of the false review, and I can’t make such a demand if the review is not false.

But if the customer posted a verifiably false review, then a letter can be effective IF done properly. Unfortunately, most attorneys erroneously believe that a cease and desist letter needs to be threatening and adversarial. They feel like the point of the letter is to intimidate the Yelper into removing the post with threats of fire and brimstone.

The far more effective approach I employ is to let the Yelper know that I just want to do what’s right. If the client is telling me the review is false, but it is really true, then I want to know so that I can tell the client to go no further. On the other hand, I let the Yelper know that truth is a defense, so the burden is on the Yelper to prove any statements. For example, in one case the Yelper posted that no one should eat at a particular restaurant, because it was so dirty that it had been shut down by the Health Department, and was currently operating on a provisional Class C rating. I advised the Yelper that information was contrary to all I had been told and had found out through my investigations. I politely asked for the source of the information. The review was taken down that same day.

Step Five – Decide if you want to pursue legal action.

If your efforts to get Yelp to remove the review were unsuccessful, and if the Yelper won’t remove the false review, or you don’t know his identity to make the request, then legal action will be necessary. In order to subpoena the information necessary to identify the Yelper, a complaint must be filed in Superior Court. It is the complaint that provides the subpoena powers. It is usually necessary to first subpoena from Yelp the IP address used to post the false review, and then to subpoena the customer information from the Internet Service Provider that owns that IP address.

Do I need to go through the subpoena process if I know the identity of the person who defamed me?

The plaintiff in an action always has the burden of proof. If you are going to sue the person who defamed you, you will have the burden of proving the identity of the defamer. You may be 100% sure that you know who posted the review, but if the person denies it, what evidence will you be able to prove that he is the one?

People get very creative in their lies when their identity is revealed. In one case, we found that the defamatory posts about our client had been created from the internet account of a terminated employee. He claimed that it just so happened that on the day the review was posted from his home, he had invited a transient to spend the night, and had allowed him to use the computer. He had told the transient about being fired, so he surmised that the transient must have posted the bad review out of anger over the way the employee had been treated. Yeah, the court didn’t buy it either.

It all comes down to the evidence, and whether a trier of fact would determine that it is more likely than not that the defendant is the defamer. If the defamer has corresponded with you, confirming that he posted the review, you probably won’t need to go through the subpoena process.

Just learning the identity of the Yelper is often enough to resolve the matter. He posted the review, believing he would remain anonymous, but when it is discovered that he has never been to the business and only posted the fake review because his boss told him too, there is little incentive to carry on with the lie.

Will I have to take the case all the way to trial?

Probably not, but it depends on your goals. If you just want the false review removed, just serving the complaint usually accomplishes that goal. There may be some resistance at first, but soon the defendant realizes that there is no justification or defense for what he did, and wants to settle.

If your goal is to recover the damages you suffered as a result of the defamation, then you can anticipate that the case will go much further. No one wants to write a check without a fight. It still probably won’t go to trial – fewer than 15% of cases go all the way to trial – but it may not settle until the eve of trial.

Step Six – Compel Yelp to take down the review.

Until recently, the courts had held that, pursuant to the Communications Decency Act (CDA), Yelp could not be compelled to take down anything posted by a third party. Now, thanks to the holding in Hassell v. Bird, if a court concludes that a Yelp review is false, in conjunction with ordering the Yelper to take down the review, it can also order Yelp to do so, in the event the Yelper defies the order.

Note, this does not mean that the victim of defamation can sue Yelp directly. The CDA still prevents any direct lawsuit against a review site for reviews posted by others. But now with the authority of Hassell v. Bird, Yelp can be included in the take-down order.

I was invited to file a friend of the court brief in the Supreme Court on the Hassell v. Bird appeal, and oral argument was just heard. After hearing the argument by counsel for Yelp, it occurred to me that the ruling of the Supreme Court on Hassell v. Bird will likely not impact the ability to include Yelp in a takedown order. Yelp argued that it WANTS to be named in any lawsuit wherein the plaintiff is seeking to have a reviewer remove a defamatory post. Even if the Supreme Court finds that the specific circumstances of Hassell v. Bird did not warrant including Yelp in the takedown order, with its arguments on appeal Yelp has essentially provided a road map to obtaining a takedown order where Yelp is involved. I call this approach The Morris Plan (see what I did there?), and the full details can be found in the very detailed article, The Morris Plan – How to Force Yelp (and other sites) to Remove Defamatory Reviews.

If you are victimized by a verifiably false review on Yelp, where the statements are verifiably false, and you decide to take action to have it removed, call Morris & Stone at (714) 954-0700.

A very alternative approach – Mount your own counter-attack.

I don’t know if I can recommend this technique, since it may get you sued, but I like the poetic justice it affords.

More and more often I am receiving calls from potential clients, wanting me to review the information they have posted online. Since Yelp won’t offer any relief from a false review, the clients have taken matters into their own hands and either posted a review about the defamer’s own business on Yelp, or created a website devoted to the defamer.

For example, a dentist gets a false review from one of his patients, who was perfectly happy with the work, but is using the bad Yelp review in an attempt to extort a refund of the money paid by her dental insurance (it happens all the time, to the point that I think some people get dental work done only because they see it as a source for cash). From his dealing with the patient, the dentist knows that the patient owns a dog grooming business, so he trashes her as well, hoping to create leverage whereby they both agree to remove their reviews.

This technique is unacceptable, unless you happen to have had bad service from the customer. My momma always told me that two wrongs don’t make a right, so I can’t get behind lowering yourself to the level of the defamer, and lying about his business like he did yours. The circumstance where the defamed business owner just happened to have had a bad experience with the defamer’s business would be extremely rare.

But there is a related approach that has some appeal, and I’ve seen it applied successfully.

I recently spoke to a landscape architect (who authorized me to share this story) about what had probably started out as an innocent miscommunication with a potential customer. The customer had called the architect, seeking an appointment. Right off the bat he was put off by the fact that architect said he would charge to create a landscaping plan, but decided to go with him. He asked when they could meet, and the architect said, “let’s chat on Tuesday.” The architect meant that to mean, “call me on Tuesday and we’ll pick a date and time”, but for some crazy reason the customer took it to mean, “I’ll be there on Tuesday,” which made no sense at all since no time was discussed.

So Tuesday comes, the architect never shows, so the customer takes to Yelp to trash him, claiming he waited the entire day for the architect to show, and as a result had to miss a wedding, Bar Mitzvah, and his admission to the Royal Order of the Water Buffalo, or some such nonsense. He added that the architect was completely unethical because he charges to create landscaping plans. When we checked the customer’s Yelp profile, we found that he almost exclusively posts this sort of flaming review. He apparently gets off on harming businesses. The architect contacted the customer to see if they could work it out, but it was clear that he had no interest in an amicable resolution.

Well, the customer had a relatively unique name; let’s call him Baruk Barinda. So the client buys the domain, barukbarinda.info, and creates a website about him, disclosing some entirely accurate and truthful facts Barinda would probably not want to have public, and how he is someone employers and customers should probably avoid given his bizarre behavior on Yelp. Now, anyone who Google’s “Baruk Barinda” will see this website about him in the number one position.

I have seen this technique before, and people tend to take it way too far. They dox the person with malicious intent, publishing their home and work addresses, telephone numbers, social security number, etc. In this case, the architect kept it completely above board. Everything was true and did not step over the line into doxing. It was basically, “Baruk Barinda stated in a Yelp review that I am unethical. Let me tell you a little about HIS ethics.”

Being a member of a group won’t necessarily give you standing for a defamation claim

Another story illustrating the point I make here over and over, namely, that a statement must accuse you of something before it is defamatory.

Today a Federal Court in New York threw out defamation action against Rolling Stone Magazine. Rolling Stone had published an article about a coed named “Jackie” who contended that she had been raped by seven men at the Phi Kappa Psi fraternity house in September 2012.

Three members of that fraternity — George Elias IV, Stephen Hadford and Ross Fowler — sued for defamation, claiming that the article implied that there was an initiation ritual that required new members to rape a coed. The plaintiffs were not named or identified in the article, but since they were members of the fraternity, they alleged that was enough to cause them humiliation and emotional distress.

When the police later investigated, they could find no support for Jackie’s story, and Rolling Stone eventually retracted the story.

Claims of this sort are often too attenuated. In the first place, the judge concluded that “Viewed in the overall context of the article, the quotes cannot reasonably be construed to state or imply that the fraternity enforced a rape requirement as part of an initiation ritual or a pre-condition for membership.” But equally problematic, if the article does not mention any of the plaintiffs by name, then how can they claim that it accuses them of rape? Even it the article left no doubt that the fraternity has such a requirement, perhaps these individuals refused to participate.

The fraternity itself might have a good claim, and if the membership is small enough that a reasonable argument could be made that it damaged the reputation of these three members, then they could have a claim as well.

By way of example, I once received a call from a police officer, wanting to sue for defamation based on what a newspaper had said about the police officers in his community. He was fed up with all the cop bashing, and he never commits the acts that the article attributes to all police, so he wanted to sue.

Context is everything. If the article stated that “every police officer on the Springfield police department is guilty of using excess force,” then the argument could be made that it is directed at this individual officer. But if the article stated that “more police officers on the Springfield police department are guilty of using excess force than any other department,” then it can’t reasonably be argued that the statement identifies any particular officers. Simply stated, your membership in a group won’t be sufficient basis to support a defamation claim, unless the publication specifically states or implies that you committed the acts. Absent extraordinary circumstances, being a member of a group won’t give you standing for a defamation claim.

Ironically and tragically, the frat members probably caused far more damage to themselves than the Rolling Stone article ever would have. The attorney for these fraternity members should have explained what would result from this action. Had the members done nothing, then at worst, in the future when they mentioned that they were former members of this fraternity, they might on very rare occasions have been met with the question, “Isn’t that the frat that has a rape ritual?” They could have answered, “Rolling Stone published a crazy story about that, but it was false, and the magazine later apologized.” Now, they have forever attached their names to this story, and future prospective employers who do an internet search for their names will be presented with this rape story.

[UPDATE – June 13, 2017]  Rolling Stone agreed to settle an action brought by the fraternity for $1.65 million. The frat has originally demanded $25 million, but settled for this lesser amount, giving “a significant portion” of the proceeds to charities related to fighting sexual assault.

[UPDATE – September 19, 2017]  The 2nd U.S. Circuit Court of Appeals reversed the dismissal of the action brought by fraternity members George Elias IV, Ross Fowler, and Stephen Hadford, finding that, given the small membership of the fraternity, they may be able to successfully show that the Rolling Stone article individually damaged their reputations.

Another Example of How Facebook Can Kill Your Lawsuit

banana peel

In today’s cautionary tale, a woman, Nancy Nicolauo, was bitten by a tick, and later began suffering symptoms such as numbness, fatigue and lower back pain. Things got worse, and she eventually had problems walking and was confined to a wheelchair.

Given the tick bite, Lyme disease was suspected, but the results came back as negative. She went to a passel of doctors, and was eventually diagnosed with multiple sclerosis.

Nine years after the symptoms started, she got tested again for Lyme disease, and this time the results came back positive. Nicolaou decided to sue for medical malpractice, claiming her medical issue had been improperly diagnosed, causing her to suffer for all those years.

Now comes the key issue. Nicolaou received the results from the Lyme discease test in 2010, and filed her suit in 2012. She claimed she was within the two year statute of limitations (SOL) for a medical malpractice claim because she did not “discover” the misdiagnosis until she received the test results in 2010. But when a claim is based on discovery, the SOL runs from the date that the plaintiff “knew or should have known” of the negligence.

However, counsel for defendants had done a little snooping into Nicolaou’s Facebook postings. As argued by defense counsel, “As underscored by the trial court, on Feb. 14, 2010, Mrs. Nicolaou posted, ‘I had been telling everyone for years i thought it was lyme…,’ to which one of her Facebook friends responded, ‘[Y]ou DID say you had Lyme so many times!'”

Thus, as evidenced by her own Facebook postings, Nicolaou had suspected “for years” that she was suffering from Lyme disease. Therefore, she “knew or SHOULD HAVE KNOWN” that the doctors had misdiagnosed her condition years earlier. The court did not agree that the clock did not start ticking on the SOL until she had actual confirmation from the lab test. She was under a reasonable duty to investigate her suspicions.

The trial court dismissed her claims on a motion for summary judgment, and that decision was upheld by the appellate court.

Posting on Facebook is a little like playing poker with all your cards face up on the table. It can be done, but the other side knows exactly what you have.

Facebook Postings Can Kill Your Personal Injury Case

Private investigator stakeout photo documentation

Yet another cautionary tale about how the things you post on Facebook can come back to haunt you.

On Friday I received a call from a prospective client, wanting to sue her employer. The caller had filed a workers compensation claim, and she was convinced that her employer was having her followed. I explained to her that, assuming she is not just imagining that she is being followed, such conduct is not unusual. Many a workers compensation claim, personal injury claim, and disability claim has been defeated by videos showing the plaintiff engaging in activities he or she claimed were prevented by their injuries.

The caller was shocked by such an invasion of privacy, and asked if it is legal. In response to that question, allow me to introduce the case of Xiong v. Knight Trans, out of the 10th Circuit.

A woman by the name of Pahoua Xiong suffered a back injury when her vehicle collided with a Knight Transportation truck. Xiong successfully sued for her injuries, with a jury finding that she was 40% liable for the injury, and Knight was liable for the remaining 60%. She was awarded $499,200.

Knight then moved for a new trial, on two grounds. First, Knight argued that there was insufficient evidence to support the damages awarded, and second because there was new evidence, found after the trial, proving that Xiong had committed a fraud on the court.

What was this new evidence? Well, given the opening paragraph of this article, you probably figured out that it was something Xiong posted on Facebook. Indeed, after the trial, a member of Knight’s legal team happened across pictures of Xiong on Facebook, showing her partying with friends and family, seemingly pain free, despite her claims that she was in such severe pain that she was taking five or six Percocet every day.

Based on the photos, Knight conducted more discovery on social media, and then hired a private investigator to follow Xiong and record her as she went about her days.

In Federal court, to successfully argue for a new trial based on the post-trial discovery of evidence, the party must show a number of factors, the most important for this discussion being that the party was diligent prior to trial in seeking out the evidence. So Knight showed the evidence obtained on Facebook and what the private investigator uncovered, but the trial court denied the motion for new trial, holding that the evidence could have been discovered earlier with more diligence.

Knight appealed, but the 10th Circuit came to the same conclusion. That appellate court concluded that the same steps that were taken after the trial, that revealed the evidence, could have been taken before the trial. Although Knight apparently did search social media prior to the trial, its efforts failed to turn up the photos of Xiong due to a misspelling of her name. As to what the private investigator uncovered, he could have been hired just as easily prior to the trial.

So, in answer to the caller’s question about whether it is legal to have someone followed in the hope of refuting their injury claims, according to the 10th Circuit, doing so is necessary part of the investigation in order to show due diligence.

You CAN Remove False, Defamatory Reviews from Yelp

Yelp love hateA false Yelp review can be devastating to a business. There are a number of factors that vary the impact of a false review, including of course the nature of the false review, and the number of honest, positive reviews to offset it. But a recent study determined that a single false Yelp review can cut a business’s gross income by 20%. I personally have seen situations involving businesses with few reviews are put out of business by false reviews.

Unfortunately, Yelp thrives on negative reviews. A big part of Yelp’s income comes from businesses that pay to subscribe to Yelp’s business services. Most of the incentive for wanting to pay Yelp comes from a desire to set forward a better image on Yelp, and for that Yelp needs negative reviews. A business with nothing but positive Yelp reviews is less incentivized to pay Yelp.

It is NOT true that paying Yelp will allow removal of negative reviews, or that failing to pay Yelp results in removal of all positive reviews, at least not directly. I don’t believe that there is a secret manual within Yelp, instructing its salespeople to retaliate against businesses that refuse to sign up for Yelp’s services, but I have received too many calls from potential clients, complaining that is just what happened, to believe that it is mere coincidence.

The story is always the same. The business was going along, singing a song, with nothing but positive Yelp reviews. Then, out of the blue, two or more negative reviews appear, usually blatantly fake in nature, because the “reviewers” complain about some product or service the business does not even offer. In one instance, the caller to our office received two fake reviews in two days, both using names of famous athletes.

Yelp undoubtedly has a mechanism that notifies its salespeople when a business has received negative reviews, because shortly after these fake reviews appear, the business receives a call from Yelp’s sales department, noting the negative reviews, and explaining that while paying $500 per month to Yelp will not enable the business to remove these negative reviews, it will give the business more control over its “Yelp presence”, including the elimination of ads from competing businesses on that business’s home page.

If the business respectfully declines, it is then that the business’s positive reviews are filtered, or so has been reported to us over and over and over.

Yelp for a priceMy theory, giving Yelp the benefit of the doubt, is not that Yelp is retaliating, but that this sales process brings a human being into the equation, instead of just Yelp’s algorithm. Under Yelp’s “rules”, reviews are supposed to be entirely organic, and not the result of improper encouragement from the business. Perhaps in looking at all those positive reviews, said human being notices that many were posted in the same week, possibly indicating that there was some incentive provided that week for Yelp reviews. Or perhaps it is noticed that many of the reviews refer to the owners by name. Would so many people eating at a restaurant really know the owners’ names? Perhaps these raise red flags, and legitimate or not, it is decided that these positive reviews should be filtered.

It is because of this sequence of events that so many people believe that Yelp is somehow responsible for the negative reviews, and that the removal of positive reviews is done to punish business that don’t subscribe.

But whatever the reality may be, the undeniable fact is that fake reviews are posted on Yelp. We have repeatedly uncovered “fake review mills”, ranging from disgruntled former employees to full time staff members, hired to post negative reviews about competitors.

Only false reviews need apply.

Continue reading

Proof Positive that You Need a Good Defamation / Anti-SLAPP Attorney


Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of a defamation action, be sure you have a good defamation attorney.

Our first example is the case of Francis X. Cheney, II v. Daily News L.P. (Cheney).  In Cheney, The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to also use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.

Cheney sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.

Cheney appealed, and the Court of Appeals for the Third Circuit agreed with the conclusion of the trial court, and affirmed the dismissal of Cheney’s case. [But see the update at the end of this article!]

So, the rule of law appears to be that if a newspaper uses a stock photo of you in conjunction with a scandalous story, you cannot successfully sue for defamation unless you are referenced by name in the article.

Now we turn to the case of Leah Manzari v. Associated News Ltd. (Manzari).

In this case, an online newspaper called the Daily Mail Online published an article about the adult film industry, entitled, “PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.” With the article, the Daily Mail published a stock photo of Leah Manzari, who is professionally known as Danni Ashe. Manzari sued for defamation, stating that the article falsely implied that she tested positive for HIV.

The article never used Manzari’s real name or film name. So, under the reasoning of the firefighter case, Manzari’s action has to be dismissed because it is too much of a stretch to think that readers will assume the article is referring to her, just because of the photo. Right? Continue reading

How to Remove False and Defamatory Glassdoor Reviews

Glassdoor
Although founded almost a decade ago, Glassdoor’s defamation problems seem to be a more recent phenomenon. We did not begin receiving calls about defamatory Glassdoor reviews until about two years ago.

In case you are unfamiliar with the site, Glassdoor seeks to be an online community regarding companies and employment. On the site you can find job listings, salary stats, and employee reviews regarding the companies at which they work or worked.

But like all review sites, there are those who use Glassdoor as a means to post false reviews about competitors, or for revenge purposes by falsely trashing a company that terminated the “reviewing” employee.

Again, I always feel compelled to explain the nature of the reviews of which I speak. I will fight to the death for the right of an employee to post an honest review about the terrible experience he had with an employer. But when I talk about false reviews, I am speaking of reviews where a competitor purports to be an employee and makes false statements about the company, or where an actual employee publishes verifiable lies about the company, as opposed to mere opinions. For example, in a recent Glassdoor case we handled, the employee stated in his review that the company is always late in issuing paychecks to the employees. The company had never been late with payroll.

Removing false Glassdoor reviews.

To its credit, Glassdoor is one of the more honorable review sites. Before posting a review, the user must attest that they were or are an employee of the business in question, and their email address is validated. (Email validation does little to stop someone bent on posting defamatory posts, because they can easily create an email account, but at least it provides one more hoop for the defamer to jump through.)

Like any review site, Glassdoor is protected by the Communications Decency Act (CDA) from any defamation claim for reviews posted by others, but Glassdoor does have a review process, and will remove reviews that it finds do not comply with its terms of use. In working with Glassdoor’s legal counsel, I have found a willingness to review and remove posts without legal action, if a sufficient showing of defamatory content can be made. With the recent Court of Appeal opinion holding that review sites can be ordered to take down defamatory posts, and that such orders do not run afoul of the CDA, Morris & Stone can now compel Glassdoor to remove defamatory posts, but Glassdoor already had a policy of respecting court decisions which found that posted content was defamatory. This is a policy all review sites should follow, and kudos to Glassdoor for doing so voluntarily.

As with most review sites, if you are an employer and find yourself burdened with a false review on Glassdoor, your first line of attack should be to ethically encourage positive reviews. The internet community understands for the most part that no matter how wonderful a company/employer, there will be some background noise created by trolls. But if you are faced with truly harmful fake reviews, and need them removed from Glassdoor, give Morris & Stone a call.

Morris & Stone Case Creates Important Internet Defamation Authority

Super hero with computer circuit

Internet Defamation Law Clarified

Morris & Stone is proud to announce that righteous Internet defamation cases will now be easier to prove, due to a Court of Appeal opinion resulting from one of our cases.

I was brought in as co-counsel to first chair a trial in Santa Cruz, representing an attorney we will refer to as “Esquire”. In addition to her legal practice, Esquire had a business on the side, which was based in some warehouse space. A few years into Esquire’s lease, the warehouse was purchased by someone we will call “Painter”, making Painter Esquire’s landlord.

The problem was, Painter wanted the entire warehouse for his own use, so he made a buy-out offer to Esquire. But Esquire liked the space, and turned down the offer.

Then began what Esquire saw as a harassment campaign, designed to get her to move out. The harassment included fights over parking and jack hammering during business hours. Ultimately, Esquire was forced to go to court to get an injunction against Painter to stop some of the behavior.

The same day the injunction was issued, Esquire received her first negative Yelp review, which was followed by two more. It was clear the reviews were false, because they accused Esquire of poorly performing services that her company did not even offer. By subpoening records from Yelp and then the Internet Service providers, Esquire confirmed that one of the reviews had been posted from Painter’s business account, and two had been posted from his home account.

Judge Ariadne Symons

Esquire sued Painter for breach of the covenant of quiet enjoyment as to her lease, and for defamation for the fraudulent Yelp reviews. Painter cross-complained for breach of lease. The trial was assigned to Judge Ariadne Symons, who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers.

At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint against Painter. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence. Judge Symons simply did not understand some basic evidentiary principles, dealing with the authentication of web postings and indirect evidence.

How to Authenticate Yelp Reviews

For example, to authenticate a review posted on Yelp, all that is required is a witness (usually the client) who can testify that the copy of the review being offered as evidence is an accurate depiction of what the witness saw when he or she visited the Yelp site. This does not mean that you can introduce anything you find on the Internet as proof of whatever it says, it means only that pursuant to Evidence Code section 1552, a witness can testify that “this is the review I saw posted on Yelp,” and that review becomes admissible as to its existence. Although we provided very clear authority, Judge Symons erroneously ruled that a representative of Yelp must be present to authenticate the existence of the reviews.

The Law of Indirect Evidence

Then there was the issue of the indirect evidence. We had the defendant dead to rights as the party who had posted the fraudulent reviews, because the IP information showed that the reviews had been posted from defendant’s home and office internet accounts. In an internet defamation case, unless the defendant confesses to posting the reviews, you can never prove unequivocally that the defendant’s fingers typed the reviews, but the jury is permitted to make the reasonable inference that defendant posted the reviews if they were posted from his account (on the very day that plaintiff has successfully sued defendant in court on another matter). But despite all the authority we provided to the contrary, Judge Symons erroneously held that indirect evidence was not admissible. An appeal was necessary to reverse all of the evidentiary errors by Judge Symons.

As anticipated, the Court of Appeal for the Sixth District found in favor of Esquire on the evidentiary rulings, and reversed the trial court. It took Judge Symons to task, referring to her conclusions as “perplexing”. More important for the legal community at large, the Court of Appeal used the opportunity to provide a very detailed explanation to all trial courts as to the admissibility of information posted on the internet, as well as the proper determination of the admissibility of indirect evidence.

In a perfect world, Judge Symons would have followed the authority we provided, and our case would have proceeded directly to verdict. But we take solace in the fact that even though the case was delayed and will now have to go back for a new trial (in front of a different judge), that detour served to create a precedential blueprint for all judges and attorneys to follow in future internet defamation cases.

Judge Symons has been moved to Family Court.

For a detailed discussion of this important opinion, click on the play button beneath the image, for the California SLAPP Law Podcast.

Aaron Morris

Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

Email Aaron Morris

View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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