By Chris Gavrielidis
On June 7 of this year, a California court of appeal upheld a trial court decision providing relief for a law firm that sued its former client for defamation. The alleged libelous statements were made in a review on Yelp. The case is Hassell v. Bird, 247 Cal.App.4th 1336 (2016), and on September 21, the state’s highest court granted review to settle the dispute between the law firm, the client, and Yelp. The penultimate question on review will be whether the trial court’s order for Yelp to remove the review was an unconstitutional prior restraint.
Defamatory statements have long been actionable under First Amendment law. To succeed on a claim, a plaintiff must show: (1) a false and defamatory statement of purported fact; (2) publication to a third party; (3) fault amounting to negligence; and (4) damage resulting from the statement made. But isn’t a Yelp review just an opinion? In that case, the review should be immune from defamation claims. But a statement won’t be considered an “opinion” merely because it is prefaced by a particular phrase (i.e. “in my opinion”) or because it is posted on a review website such as Yelp. What matters is not only what is said, but whether it is true and whether it insinuates the knowledge of damning facts not known to the general public.
Which was it in this client’s case, opinion statements or false statements of purported fact? The court determined that it was the latter—but not on the merits. The plaintiff won a default judgment against the client for failing to appear at trial. Then, as the only plausible way to effectuate its order, the court required Yelp to remove the client’s review, even though Yelp was technically a non-party to the suit. Complicating the First Amendment dispute is a due process issue; namely, the court’s holding that Yelp had no constitutional right to notice and hearing on the order. Hassell, 247 Cal.App.4th at 220-21.
For future defendants, there is some concern that this ruling opens the floodgates to any business that take offense to online customer reviews. An offended business need only file suit against a former customer who wrote the review and, if he fails to show, obtain a default judgment. (And how many of these defendants have the resources to defend themselves at trial?) For Yelp’s part—and really for all providers—there is a question of statutory immunity. According to the Communications Decency Act of 1996, “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.” 47 U.S.C. § 230. This obscure language has provided online publishers—such as Yelp—with protection from liability for the speech of third-parties since its enactment. If the California Supreme Court affirms the lower court’s ruling, some fear that it will single-handedly circumvent a federal law that has shaped the freedom of speech on the internet for 20 years.
What is the best way to strike the balance? There is a certain level of legitimacy that one might expect with news reports, newspaper publications, and even magazines (tabloids excluded). But people know you can’t believe everything you read on the internet. Print publishing requires a middleman. Editors read submissions and make conscious decisions to include them for publication. Herein lies the basis for the third element of a defamation action: there must be negligence by the third party publisher. Online, anyone can post a review without oversight or a pre-screening process. One can instantly post a product review on Amazon, reply to on an online news article, or comment on a public figure’s YouTube video. All of this occurs daily without the provider’s involvement. That is the logic of § 230, which foresaw how quickly and how easily information on the internet would move, and how implausible it would be for providers to constantly police their users.
Are we being too harsh by striking down a common Yelp review? Surely we can leave it to other readers to judge the veracity of a bad review. It would be interesting to see what the implications of this suit will have for larger providers like Wikipedia which are nearly entirely user-based. These issues should be taken with a grain of salt. That seems to be one of the implicit messages of § 230, which in its wisdom understood the potential for abuse by larger entities who have the power to launch defamation suits like this one. Never before the internet has it been so easy to post what you want when you want. It hardly seems right to impose the same standard on Yelp as one would for print publishers.
Student Bio: Chris is a Content Editor on the Journal of High Technology Law and a third-year student at Suffolk Law. He is a strong advocate for individual liberties and a career goal of practicing First Amendment law.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
