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Yelp Ordered to Remove Defamatory PostsInternet Defamation Blog

Yelp Ordered to Remove Defamatory Posts

False Yelp Review

As I have stated here many times, although wrongdoers have been able to use it as a shield, the Communications Decency Act (“CDA”) is an essential statute if we want to live in a country where one can freely offer their opinions about products and businesses.

But I have also argued for a simple fix to the abuses of the CDA. If someone posts a defamatory review on Yelp, the CDA prevents any legal action against Yelp; only the person who posted the comment is liable for the defamatory comments. Fair enough. If Yelp could be made to research every review the subject of that review claims is defamatory, it could not exist, and the process of finding a good sushi restaurant would be made far more difficult.

But would it be so burdensome to require Yelp to take down a review, AFTER a court has determined that review to be false and defamatory? It is a long and arduous journey to take a case to trial and prove that a review is defamatory. There would be very few judgments coming out the other side of that process, and hence very few posts Yelp would need to take down. Indeed, Yelp should embrace such an approach, because it claims to want only legitimate reviews. If after presentation of evidence, a court has determined that a review posted on Yelp is false, Yelp should be thrilled that a false review was rooted out and jump to remove it.

The CDA is a necessary evil, but it makes no conceptual sense that after the person who posted the comment has been found to be liable for defamation, that the post can remain, still damaging the reputation of the plaintiff. At least in the case of Yelp, the court can order the defendant to remove the post, and the defendant has the ability to do so, but what about sites like Rip Off Report, where the site prevents the defendant from removing his own post? I have long called for a mechanism to force sites to remove defamatory posts after a court has found them to be so.

Finally, a Court in San Francisco apparently heard my plea, and entered a judgment ordering Yelp to take down a post. The conventional wisdom has always been (1) you can’t get a court to order an injunction against Yelp since it is not a party to the action, and (2) obtaining such an order would violate the CDA, because is somehow amounts to finding liability against Yelp.

But I have long railed against that conventional wisdom.

In the first place, it is commonplace to get orders against non-parties to an action, where those orders are necessary to effectuate the judgment. For example, when I bring a defamation action, I always seek injunctive relief, ordering the party not to re-post the defamatory comments. It is a Pyrrhic victory to obtain removal of a false comment if the defendant is free to post it again. Sure, he faces another defamation action, but it typically takes a year to get a case to trial. By getting the court to issue an order against publication, I can go to court and have the defendant held in contempt if the order is violated, which is a fast process. The court has the power to sanction or even jail the defendant.

It is equally ineffectual to get an order prohibiting the defendant from re-posting the defamatory comments, if he can simply get a friend to do so. Therefore, my orders always include language that no agent of the defendant can re-post the defamatory comments. Thus, although no third party is specifically named, the orders are directed to third parties. It is not conceptually strange at all that in ordering a defendant to take down a posting, that order would also order the site where the false review is posted to take down the posting, in case the defendant fails to cooperate.

As to such an order being a violation of the CDA, there is no liability attached to a take down order. The CDA is designed in part to prevent lawsuits from being used to silence criticism. If Yelp could be made a party to every defamation lawsuit, it would soon be unable to exist given the cost of defending such actions. But if it is never a party to the action, and is only ordered to take down a posting, that presents no hardship.

This will be a very long article, since to be useful for any future application, it must necessarily examine the many different issues involved, and the reasoning involved in reaching this ground-breaking decision. Most of what follows is verbatim from the Court of Appeal’s opinion, with my reasoning and thoughts interwoven. At the conclusion, I will explain how Yelp does itself and society a disservice by fighting cases such as this.

The Tale of Woe

The case in question is Hassell v. Bird, which 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.

Quick Sidebar: This is extremely common on Yelp. Fearing that a single bad review will not cause enough mayhem, the reviewer will create multiple identities in order to post multiple bad reviews. When that occurs, even if the first review was a valid opinion and not defamatory at all, the subsequent reviews are false and defamatory because they create the intentionally false impression that the business had multiple dissatisfied customers.

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. [When I become King of the world, I will institute the death penalty for anyone beginning a review with “I’d give zero stars if I could.” It’s a scale of 1 to 5, with 1 being the lowest. We get that if you give the business one star, you didn’t like it.]

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 . . . .”

Another Quick Sidebar: In addition to creating multiple identities in order to create the false impression of multiple dissatisfied customers, another reality of Yelp is that the angered reviewer cannot stick to the facts, and will embellish. Apparently, when they sit down at the keyboard to vent, they realize they really don’t have much to be mad about. I would fight to the death the right of “Birdzeye B” to write that she felt Hassell should have been more aggressive with the insurance company, or whatever her beef was, but she elected instead to claim that Hassell had never contacted the insurance company, which was apparently an easily verifiable false fact.]

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.)

Yet Another Quick Sidebar: When a review is posted to Yelp, Yelp’s computers capture the IP address of the computer from which the review was posted. Yelp claims to have a sophisticated algorithm designed to identify and remove both positive and negative fake reviews. One really easy way to spot fake reviews is to determine if they came from the same IP address. If two reviews are posted in rapid succession under two different names but from the same IP address, it’s a good bet that it’s the same person posting multiple reviews. It’s not a perfect system, because Internet Service Providers like Comcast and AT&T use dynamic IP addresses, meaning that in January Bill Smith could post a review on Yelp using an IP address that is later assigned to Joe Dokes, who also decides to post a Yelp review. But the odds of two people deciding to post a review about the same business, and happening to be assigned the same IP address when they decide to do so, are greater than one in four billion, so at a minimum Yelp could have the algorithm set up to flag such an occurrence as suspicious. I suspect Yelp does take this into consideration, as evidenced by the fact that J.D.’s review was immediately filtered. But I usually see this happen in the case of positive reviews. I have seen this on occasion when a client calls, wanting to sue Yelp for filtering 20 positive reviews, while leaving mostly negative reviews. When I ask the potential client if it might be possible that the 20 positive reviews were all posted from the same IP address, the caller usually has a sudden need to take another call.

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 immediately 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. Although a transcript of that hearing is not in the appellate record, the court’s minute order reflects that 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.” [Wait a second. That smacks of prior restraint, which is unconstitutional. The court can order her not to repeat the statements that have been adjudicated to be defamatory, but it can’t order her never to talk about Hassell. I’ve got a feeling that’s going to be a problem.]

And here is the big one, and the reason for this article:

“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.]

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 [I’ve never dealt with Larry at Yelp], 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 [I’ve dealt with Aaron many times (in fact, we were recently on the same side of a case). A generally reasonable guy, but as I will explain more fully below, in advocating for his client, he fails to recognize that Yelp does a lot of harm to business owners; harm that could be avoided with no negative impact to 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.” [This is the attitude you sometimes run into with Yelp. How has the defamation not been proven at this point? It was proven to a court. Must it also be proven to the Court of Yelp? The anti-SLAPP threat is probably valid, but there is no reason to sue Yelp. Just have it held in contempt pursuant to the order.]

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.”

[C’mon Aaron, Dawn is being reasonable, why don’t you respond in kind? Why fight about this, and run the risk of an adverse appellate decision? A court has determined that the reviews are false. The last thing you should do is fight the point. How about this. You don’t want bloggers to be able to write about how Yelp was ordered to take down false reviews, so inform Dawn that you do not recognize the authority to make such an order, and are therefore rejecting that order, but in the interests of fairness, Yelp will voluntarily take down the reviews. You can even couch it in terms of the reviews failing to comply with Yelp’s terms of use. After all, if you just take a quick peek at the IP addresses, you’ll probably see that Bird posted them from the same address, making the subsequent reviews false. With that offer to Dawn, you could probably even persuade Dawn to stipulate to vacate the judgment as to Yelp, and thereby avoid any precedent. Are we good?]

E. Yelp’s Motion to Set Aside the Judgment [I guess not.]

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.)

[C’mon Yelp, are you kidding me? You think there is a constitutional distinction between a bench and jury trial? Quite predictably, the Court of Appeal found nothing in Balboa Island supportive of this contention. In fact, it noted the injunction in that case was issued after a bench trial.]

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.

[This argument was very disheartening for two reasons. Yelp is so out of touch, that it could not even see that the court had made that determination. What Yelp really meant is that it had not been established in the Court of Yelp. And the argument is equally sad because Yelp is trying to insert itself into the issue of liability as to Bird, when the point of the CDA is that websites like Yelp should not be liable for content posted by others. Yelp has completely turned the concept around, and instead of proclaiming, “we don’t have a dog in this fight, we are just a forum where people can post their comments,” it is fighting for Bird’s right to defame out of some misguided belief it should not have to comply with take-down orders.]

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.

[Yelp is quite right in its prediction. Hence forth, all actions against defendants who post false Yelp reviews will include a request for a take-down order to Yelp (thanks to Yelp’s assistance in obtaining this published Court of Appeal decision). But why does Yelp offer that as a problem? Again, shouldn’t Yelp jump at a procedure that will assist in weeding out false reviews?]

Truth Vs Myth Bowling Facts Investigating Busting UntruthWith 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

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.

Some things for Yelp to think about.

Thinking of Yelp brings an image to mind. You’ve probably seen the video the anti-smoking industry loves to show, wherein at a congressional hearing the executives from some tobacco companies all testify that tobacco is not addictive. They are in the business of selling a deadly product, but rather than to just acknowledge that fact and work toward educating the public (comfortable in the knowledge that people have no problem with being self-destructive), they felt they had to take an absolutist position on their product.


Yelp too sells a very dangerous product. Most of the reviews posted on Yelp are honest and heartfelt, but like the executives who denied that tobacco was addictive, Yelp claims ignorance of the fact that its website also permits publication of false reviews that destroy businesses. Yelp knows, because I and others have shown it, that some businesses now have employees hired for the purpose of posting false negative reviews about competitors and false positive reviews about themselves.

To an extent, Yelp’s business model depends on negative reviews. Most business owners have experienced “the Yelp call”. After a bad review or two is posted, Yelp calls to offer the business a $500 per month advertising plan, in order to ameliorate those bad reviews. No, contrary to popular myth, Yelp does not offer to remove the bad reviews for a fee, but it does suggest and imply that with a paid advertising package, the business can better control the public perception of the business.

But even if Yelp must rely on negative reviews, it should not go so far as to fight to protect false reviews. It should cooperate in any process that would help it to uncover false reviews. One such process should be to take down any review that has been judicially determined to be defamatory. No court order should even be required. The three major search engines will de-index content that a court has determined is defamatory, and Yelp should follow suit.

When an attorney is hired to address a false review on Yelp, he or she first must subpoena the subscriber information from Yelp in order to begin the process of identifying the person who posted the review. Yelp routinely fights those subpoenas, which can be appropriate. If a Yelp user wants to maintain confidentiality, they should be able to anticipate some level of protection. But here again, Yelp should view protecting the confidentiality of its users and helping to eliminate fake reviews as equally laudable goals. If a complaint and subpoena indicate that five fake reviews were all posted by the same person, and give reasons why that is likely so, in less time than it would take for Yelp to fight that subpoena, it could look at the IP addresses used to post the reviews to determine if the allegations are true. If they are true, then Yelp should not run interference for a party who is seeking to damage a business, and who has violated Yelp’s own terms of use.
Internet Defamation Update
One of the attorneys involved in this case was kind enough to drop me a line about the goings-on since the opinion was released.

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.

Then comes this case this case. As set forth above, this result was completely avoidable and unnecessary, but Yelp marched on and ended up with a result that it must appeal. Yes, Yelp did not go silent into the night, and has petitioned the California Supreme Court for review.

And therein lies the next tale of Yelp using firearms on its lower extremities. In its petition and reply, Yelp sings the refrain over and over again that it should not be ordered to remove the defamatory review, because it was never afforded the opportunity to show that the review was not defamatory. “The lower court gave Yelp no opportunity to litigate the question of whether the speech is defamatory, and thus its resulting decision is not binding on Yelp,” its counsel wrote. We will set aside for the moment how and why exactly Yelp would want to get into the business of proving the truth of statements made by third parties, to instead bask in the glow of what Yelp might ultimately achieve.

The issue here is whether someone not named in the action (Yelp) can be included in a take-down order, and whether doing so runs afoul of the CDA. Yelp says its due process rights were violated because it was not “invited” to participate. The Supremes could agree, and decide to resolve the issue by announcing that Yelp must in the future be invited. In order to stay clear of the CDA, Yelp still could not be named as a defendant or face any liability for a review posted by a third party, but the court could conclude, just as Yelp has requested (probably without realizing it has done so), that Yelp must be notified of the pending action in case it wants to defend the defamatory speech.

This procedure is certainly not unique or unprecedented. For example, when a party sues for quiet title on a property, the complaint names anyone the plaintiff knows is claiming an interest in the property, “and all those unknown persons claiming an interest in the property.” The Supreme Court could conclude that, while not a party to the action, Yelp must be notified that plaintiff will be seeking a take-down order.

Library of Petition Documents

Thank you to the Technology & Marketing Law Blog for the following library of documents related to this case, most of them disagreeing with just about everything I wrote above.

Yelp’s Petition for Review, Hassell’s Response, and Yelp’s Reply. Amicus letters from ACLU/EFF/Public Participation Project, Automattic/Pinterest/Reddit, Avvo, Computer & Communications Industry Association, Facebook/Microsoft/Twitter, GitHub, Glassdoor, GoogleInternet Law Scholars, Public Citizen, R Street, Reporters Committee for Freedom of the Press (and 30 other organizations), Wikimedia, and Xcentric Ventures (Ripoff Report).

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

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