Online Providers of Third Party Content Cannot be Forced to Remove Defamatory Statements
People turn to the internet to find reputable businesses, compliment a local coffee shop, and even lambaste the service at a nearby restaurant. The ubiquitous influence of online ratings, rants, and reviews is felt by consumers and businesses alike. But what recourse does an individual or company have when faced with an online statement that defames their business? Can websites like Yelp or TripAdvisor be forced to remove defamatory statements in such situations, or any situation for that matter?
The California Supreme Court has ruled that individuals and businesses cannot use injunctions to force websites like Yelp or Google to remove defamatory statements. In Hassell v. Bird, No. S235968 (Cal. July 2, 2018) [“Hassell”] the court ruled that forcing websites to depublish defamatory content posted by third parties treats the website as a publisher of the content in violation of the Communications Decency Act (“CDA”). Under Section 230 of the CDA both internet providers and interactive computer service providers (like Yelp) cannot be treated as “Publishers” when posting content from a third party, like a reviewer or blogger. In short they are granted immunity from liability for what the public may post on their platform.
In Hassell, an attorney sued a former client for posting allegedly defamatory content on Yelp, an internet forum for third party reviews of businesses. The attorney did not sue Yelp, but did request injunctive relief directing Yelp and the client (here the third party content provider) to remove the posts if the content was ultimately deemed defamatory. After the client failed to respond to the Complaint, the attorney subsequently obtained a default judgment against the client. As part of the default judgment, the superior court ordered non-party Yelp to remove the client’s defamatory content.
Yelp subsequently filed a motion to vacate the judgment on the grounds that the removal order violated, among other things, Section 230 of the CDA. The superior court denied Yelp’s motion, and the Court of Appeals affirmed, on the grounds that the order did not impose any liability on Yelp, who was not a party in the initial lawsuit.
The California Supreme Court disagreed, finding that the lower courts mischaracterized Yelp’s status as a “publisher” of the client’s libelous statements and in doing so, contravened Section 230 of the CDA. Relying heavily on congressional policy intended to foster free speech, the Court reasoned that the removal order imposed a legal duty to act on Yelp solely because of its erroneous status as the “publisher” of a third party’s content. A court order that requires a non-party internet provider to depublish or otherwise alter third party content, even when the content is libelous, is the type of conduct that falls squarely within the purview of the section. This prevented the attorney from maintaining a claim for injunctive relief directly against Yelp and immunized Yelp from direct liability. The Court concluded that Section 230 also prohibits indirect liability imposed on internet providers solely because of their status as a publisher of third party content.
Although the Hassell Court makes clear that internet forums cannot be forced to remove third party posts, the long term consequences of the decision are not entirely clear, given that the Court did not address whether Section 230 would immunize websites against liability under a theory of aiding and abetting (or some other legal theory). It may be possible to obtain relief on a theory that a provider acted outside its role as a mere publisher of third party content, but Hassell further narrows an already small gap for such claims to be maintained under the CDA.