United States: In A Divided Opinion, California Supreme Court Squashes End Run Around CDA Immunity That Sought To Compel A Non-Party Online Platform To Remove Defamatory Content

In a closely-followed dispute, the California Supreme Court vacated a lower court order, based upon a default judgment in a defamation action, which had directed Yelp, Inc. ("Yelp"), a non-party to the original suit, to take down certain consumer reviews posted on its site. (Hassell v. Bird, No. S235968, 2018 WL 3213933 (Cal. July 2, 2018)). If the plaintiffs had included Yelp as a defendant in the original suit, such a suit would have likely been barred by Section 230 of the Communications Decency Act ("CDA" or "CDA Section 230"); instead, the plaintiffs adopted a litigation strategy to bypass such legal immunities. In refusing to allow plaintiff's "creative pleading" to avoid the CDA, the outcome was a win for online companies and platforms that host user-generated content ("A Case for the Internet," declared Yelp).

In Hassell v. Bird, plaintiffs obtained a default judgment against defendant Bird for defamation and required her to remove certain offending reviews she allegedly posted on Yelp. The judgment also contained an order requiring Yelp, a non-party, to remove Bird's defamatory reviews from its site. Apparently not satisfied with the evidentiary showing at the default proceeding, Yelp refused to take down the reviews at issue. Yelp did represent, however, that Bird could comply with the court order by removing the offending reviews herself at any time. Yelp then filed a motion to vacate the judgment, arguing that to the extent the removal order was aimed at it, the injunction violated Yelp's due process rights and was barred by CDA Section 230. Yelp also argued that it had a protected First Amendment interest in the publication of the reviews, apart from Bird's own interest, that had not been adjudicated.

The lower court denied Yelp's motion and held that the injunction against Yelp was proper because Yelp was aiding and abetting Bird's violation of the injunction by, among other things, allowing the reviews to remain posted on the website. The California Court of Appeal affirmed, on different grounds, finding the trial court had the power to fashion such relief and that such an order (or violation of an order) would not impose "liability" on Yelp as a publisher of third party speech.

On appeal, the California Supreme Court was asked to consider the validity of the removal order, entered upon a default judgment, as it directs Yelp to remove certain consumer reviews from its website. The Court reversed the judgment to the extent it required Yelp to remove the challenged reviews or subsequent comments of the reviewers.

"The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant. Put another way, we must decide whether plaintiffs' litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no."

"In this case...Yelp is inherently being treated as the publisher of the challenged reviews, and it has not engaged in conduct that would take it outside section 230's purview in connection with the removal order. The duty that plaintiffs would impose on Yelp, in all material respects, wholly owes to and coincides with the company's continuing role as a publisher of third party online content."

According to a plurality of the court, plaintiff's legal remedies lie solely against Bird and cannot extend (even via an injunction) to Yelp. Deciding the appeal on CDA grounds, the plurality did not take up the due process issues over when a non-party can be compelled to comply with an injunction. Yet, this holding is not the entire story.

Indeed, this case divided the California Supreme Court as the justices, over the course of 102 pages, wrote varying opinions that wrestled with the scope of CDA immunity against the backdrop of the problem of online defamation: three justices in the plurality wrote to reverse the lower court's injunction based on the CDA; one concurring justice agreed the injunction against Yelp was invalid, but on due process grounds and contended that Yelp should have a meaningful opportunity to be heard on the propriety of the injunction against it (yet still appeared to agree with a fair amount of the plurality's CDA analysis); and three justices dissented, arguing that Yelp had no CDA immunity from the removal order and that the order did not violate due process.

One of the more interesting issues debated among the justices was under what circumstances is CDA immunity triggered in the litigation context, namely, whether Section 230 only bars actions that subject covered providers to liability (as opposed to post-judgment injunctive relief whose non-compliance might subject providers to potential contempt sanctions). Under CDA Section 230(e)(3): "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." The plurality rejected the plaintiffs' argument that Yelp could not claim CDA immunity because no "cause of action" had been alleged directly against it as a defendant, and that subjecting Yelp to a post-judgment injunction would not amount to the imposition of "liability." In the court's view, Section 230(e)(3) "does not expressly demand that a cause of action always must be alleged directly against an Internet intermediary as a named defendant for the republisher to claim immunity under the statute," and injunctions such as the removal order can place substantial litigation burdens on online platforms.

The concurring justice agreed the removal order should be vacated, but based on due process grounds (not the CDA):

"Yelp is not a party to this litigation, and the courts' power to order people to do (or to refrain from doing) things is generally limited to the parties in the case. Although there are qualifications to the rule, there is no exception that permits the sort of order we confront here: an order directing a nonparty website operator to remove third party user content just in case the user defaults on her own legal obligation to remove it. Before Yelp can be compelled to remove content from its website, the company is entitled to its own day in court."

Still, the concurring justice, in dicta, expressed some agreement with the plurality's CDA analysis ("Although I believe it is unnecessary to reach the section 230 question, I agree with the plurality opinion's conclusion given the particular circumstances of this case: Even if it were permissible to issue an injunction against Yelp solely because it once permitted Bird to post her reviews and has the ability to remove them, the proceedings would be barred by section 230.").

The Hassell dispute is not the first time a litigant sought to compel a platform (and non-party) to take down user content. For example, we wrote about a similar litigation strategy in 2010 in a dispute involving post-judgment efforts to compel consumer gripe site Ripoff Report, a non-party to the suit, to remove defamatory postings based upon the theory that by continuing to host the content, Ripoff Report was aiding and abetting the enjoined parties in violating the injunction. On appeal, the Seventh Circuit affirmed that Ripoff Report could not be compelled under Fed. R. Civ. P. 65 to remove the content because they were not in "active concert or participation" with the defendants merely because it entered into an agreement prior to the suit to host their content; the appeals court also ruled that merely having the technical capability to remove the content does not render its failure to do so aiding and abetting. (See Blockowicz v. Williams, 630 F.3d 563 (7th Cir. 2010)). Deciding the case on procedural grounds, the Seventh Circuit, unlike the California Supreme Court in Hassell, sidestepped the CDA.

While Hassell is a victory for online publishers that host user content, the California Supreme Court opinion was divided and we will have to wait to see how the decision is interpreted by future courts and relied on by parties on both sides of disputes concerning objectionable third-party postings. Given that the plurality opinion did not take up the due process issues, we will also have to wait for further clarification from the Court about its position on when a litigant may bind a non-party online publisher with a takedown order (a position that is important as many web platforms are based in California). Beyond the legal issues, the members of the Court expressed sympathy about the challenges individuals face to secure removal of defamatory material from the web – and indeed, despite CDA immunity, individuals still have legal remedies against the posters of such content. Moreover, in general practice, most websites will voluntarily take down material that has been deemed defamatory by a court (though in this case, Yelp had concerns with the sufficiency of the default judgment), so perhaps we will not see another case with the same procedural circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions