Hassell v. Bird, No. S235968 (Cal) July 2, 2018.

In the infancy of mass online culture, Congress thought the expansion of online communications and its economy would be fostered by insulating internet service providers from liability when those providers do not act as content providers. The Communications Decency Act of 1996, Section 230, offered that assurance. There is a certain amount of intuitive sense in offering such immunity, particularly if internet service providers are seen as forms of utilities, like telephone companies, which are not ordinarily responsible for things said over their lines or airwaves.

No matter whether this corporate immunity is seen as salutary or not, what is clear is that not all situations could be foreseen or addressed by Section 230 more than twenty years ago.  Hassell v. Bird highlights the struggles between private online users and the corporations which control access to online postings.

Ava Bird was not pleased with the representation of the Hassell Law Group, and let the world know by publishing a review on Yelp!!, on online site on which businesses advertises and readers post their views of the business’s success (or failures).  Hassell successfully pursued an action for defamation against Bird, who could not be found at the time judgment was entered against her. Hassell sought and obtained a mandatory injunction directing Yelp to take down Bird’s defamatory review.

Yelp! refused, citing immunity under Section 230.  The Supreme Court of California today agreed with Yelp!’s position, finding that through the take-down orders, the lower courts had erred in casting Yelp! as speaker and publisher of the content, a result neither supported by the facts nor consistent with Section 230.  The lower courts found it unobjectionable to ask Yelp! to aid in executing an order of take-down to aid in effectuating Hassell’s judgment, and observed that the principles of immunity would not be abrogated by doing so, for no liability had been imposed on Yelp!.

The majority of  the Supreme Court of California was not pleased with Hassell’s determination not to join Yelp! as a party defendant, because, in the majority’s view, ultimately the order that was sought treated Yelp! as the publisher or speaker of the information to be removed.  The Supreme Court of California perceived the refusal to join Yelp! as strategic, but tactically fatally flawed, for Hassell was attempting to do indirectly what Section 230 would directly forbid.

The majority of the court disagreed with the notion that Yelp! would not be burdened by compliance with the order in issue and, presumably, with similar orders to follow in the future.

The majority noted that Hassell retains remedies against the judgment defendant, who could be required to try to secure removal of her posts.  

In concurrence, Judge Kruger would narrow the determination to find the order invalid where Yelp! had not been a party to the litigation and had not had its day in court. Section 230 need not be considered, but if it were, it would likely immunize Yelp!. Whether immunity would continue on other facts remains for examination on another day.

Dissenting Justice Lui sees the court as ensuring that Hassell will continue to suffer the harm that her defamation action sought to ameliorate.  No circumstances that immunity was intended to avoid are present where Yelp! has not been exposed to any liability or required to defend against an action for defamation.  The general principle that non-parties are not subject to orders and judgments does not apply where Yelp! was asked only to aid in effectuating a judgment that had already entered. Without suggesting that all online services that publish reviews ought to be open to compliance with removal orders, Judge Lui could not construe Yelp!’s relationship with Bird as entirely passive, as it was only through Yelp! that Bird could act.

Judge Cuellar has dissented separately, with Judge Stewart’s agreement, and in so doing drew no small amount of counterargument from the majority.  Judge Cuellar disagreed with the notion that Section 230 provides an absolute bar to any liability. Due process principles are involved with the notion of compliance with a lawfully issued order, but the court’s determination in this case has gone too far and will serve to defeat those who seek redress for defamation.  Section 230 can be seen as immunizing against liability for damages, not as a shield against compliance with court orders, which can run against third parties. There would be no unfairness to Yelp! concerning the take-down injunction, for notice to Yelp! would be required before any such order could be entered.

It is highly unlikely that this case will be seen as resolving the issues presented when liability arises in the course of  life online, although for present purposes the decision is likely of great comfort to internet service providers and great consternation to those who assert they have been defamed online. The California Supreme Court judges have been nothing if not  thorough in describing and discussing all relevant precedent. In that regard, the Hassell v. Bird decision may serve as a teaching case as well as a significant decision in its own right.

Hassell v. Bird, No. S235968 (Cal.) July 2, 2018

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