Important decision comes down in Hassell v. Bird

An important ruling came down from a plurality of the California Supreme Court yesterday reversing the decision of the Court of Appeal in Hassell v. Bird. The case gained notoriety due to the fact that it arose out of a negative Yelp review of a California lawyer, who sued the author of the post and then successfully got an injunction demanding that Yelp remove the review. Notably, Yelp was not a named defendant in the original lawsuit. Yet until yesterday’s ruling, lower courts upheld the injunction, largely overlooking the protection afforded to Yelp by Section 230 of the Communications Decency Act.

Various consumer websites such as Yelp, TripAdvisor, Amazon, and others regularly rely on Section 230 to shield them from liability. The law states that online intermediaries cannot be held liable when website users post potentially defamatory comments or reviews. As PPP has documented, some business owners who are unhappy with reviews on these websites will bring lawsuits against the authors of the posts. Some are considered SLAPP suits, with plaintiffs claiming millions of dollars in damages in an effort to silence consumer speech. Without the protection of Section 230, legal bullies could “SLAPP” not only the authors of the posts, but the websites as well. Section 230 and strong state anti-SLAPP laws work in tandem to curtail meritless, costly litigation.

These efforts to protect Internet speech made the 2016 decision by the Court of Appeal even more disconcerting. There, the court said that Yelp was “an administrator of the forum,” and should not receive Section 230 protection. A dozen groups decried that decision, including PPP.

But a plurality of the California Supreme Court restored hope. “Yelp could have promptly sought and received section 230 immunity had plaintiffs originally named it as a defendant in this case,” Chief Justice Cantil-Sakauye’s plurality opinion noted. Furthermore, the language of the law “conveys an intent to shield Internet intermediaries from the burdens associated with defending against state-law claims that treat them as the publisher or speaker of third party content, and from compelled compliance with demands for relief that, when viewed in the context of a plaintiff’s allegations, similarly assign them the legal role and responsibilities of a publisher qua publisher.” Section 230 thus shields Yelp from liability.

As PPP Board Member Eric Goldman wrote in his discussion of the case, Justice Kruger’s concurring opinion “echoes much of the plurality’s Section 230 discussion, giving a 4 vote majority to those points.” However, Goldman noted that part of Justice Kruger’s opinion also seems to agree with the dissenting opinions in the case: “That’s a good sign that courts citing this precedent will reach conflicting results.”

Given the fractured nature of the court (which Goldman examined in further detail in his post), the future of Section 230 is not entirely clear. Nonetheless, this was an important win for Yelp and similar websites. PPP is pleased that here, as the plurality noted, an “attempted end-run around section 230 fails.”