In Hassell v. Bird, a 4-3 Supreme Court today invalidates a superior court order directing Yelp to remove negative reviews of a lawyer posted by a former client. The order was made in a successful defamation action by the lawyer against the former client, an action to which Yelp was not a party.
No opinion attracts a majority. The plurality opinion — by Chief Justice Tani Cantil-Sakauye, for herself and Justices Ming Chin and Carol Corrigan — relies on the federal Communications Decency Act of 1996, which gives protections to “provider[s] or user[s] of an interactive computer service” regarding “information provided by another information content provider.” Stating that the lawyer’s “maneuver” of getting an injunction against non-party Yelp, “if accepted, could subvert a statutory scheme intended to promote online discourse and industry self-regulation,” the plurality concludes that, in contravention of the Act, “[t]he 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.”
Justice Leondra Kruger provides the decisive fourth vote in Yelp’s favor, but on a different ground than the plurality opinion. In a concurrence, Justice Kruger agrees with the plurality’s application of the Act in this case, but she finds it more important that Yelp was not a party to the lawsuit that yielded the content removal order: “Before Yelp can be compelled to remove content from its website, the company is entitled to its own day in court.”
Justices Goodwin Liu and Mariano-Florentino Cuéllar file dissents. (Pro tem Justice Therese Stewart joins Justice Cuéllar’s opinion.) Justice Liu sees no reason to bar the superior court from ordering Yelp “to remove postings that have been already adjudicated to be defamatory.” Justice Cuéllar says that the federal legislation is “no trump card letting providers of ‘interactive computer service’ . . . such as Internet platforms evade responsibility for complying with any state court order involving defamation or libel.”
The plurality states that the defamed lawyer is not without a remedy because the former client must “undertake, at a minimum, reasonable efforts to secure the removal of her posts.” Justice Cuéllar, however, says that view “runs the risk of misjudging the consequences of implying, in the early 21st century, that protections from libel, defamation, so-called ‘revenge porn,’ and similar actions are plenty available except, of course, where they arguably matter most: on the digital network that gives a lone voice in the public square a megaphone loud enough to be heard in the most remote corners of the planet.” The federal statute, he concludes, is not “a reckless declaration of the independence of cyberspace.”
The court reverses the First District, Division Four, Court of Appeal.