California Supreme Court Rules That Section 230 of Communications Decency Act Prevents Courts from Ordering Online Services to Remove Negative User Reviews
July 6, 2018
On July 2, 2018, the California Supreme Court issued its long-awaited decision in Hassell v. Bird, a case that challenged the federal statutory immunity that online services have traditionally enjoyed under 47 U.S.C. Section 230(c), known colloquially as the Communications Decency Act (CDA). The CDA makes clear that a service provider is not to be treated as the publisher of material uploaded to its service by third parties. The statute thus generally bars the imposition of liability—including for injunctive relief—against online services for hosting or providing access to such third party materials.
In a 4-3 decision, the California Supreme Court held that under the CDA, the online service provider Yelp could not be ordered to remove third-party content that a lower court held was defamatory. In the case, Hassell, a personal injury lawyer, sued an individual, Ms. Bird, who posted an unflattering review of the lawyer on Yelp. Yelp was not itself named as a defendant, and could not have been sued because of the CDA. After securing a default judgment against Bird, Hassell requested and the trial court issued an injunction requiring both Bird and Yelp to remove the review. When Yelp received notice of the injunction, it intervened in the case and moved to vacate the order as contrary to the CDA. But both the trial court and the court of appeal rejected Yelp's position. The trial court held that by leaving the review on its website, Yelp was "aiding and abetting" the defendant's violation of the injunction and could therefore be enjoined itself. The court of appeal affirmed, explaining that the CDA does not apply because, in the court's view, "the removal order does not treat Yelp as a publisher of Bird's speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews."
The California Supreme Court reversed, finding that Yelp could not be enjoined. The court was divided about the rationale for that ruling, however. Three justices adopted a broad reading of the CDA endorsing the policy justifications for the statute and summarizing the law's history and jurisprudence. As they recognized, if the lawyer had sued Yelp directly over the review, the CDA would have clearly barred the claim. The plurality concluded that Hassell should not be permitted to evade that protection by securing a default judgment and only then seeking to bring Yelp into the case:
What plaintiffs did in attempting to deprive Yelp of immunity was creative, but it was not difficult. If plaintiff's approach were recognized as legitimate, in the future other plaintiffs could be expected to file lawsuits pressing a broad array of demands for injunctive relief against compliant or default-prone original sources of allegedly tortious online content.
A fourth justice, Justice Kruger, concurred in the judgment, but she relied on principles of due process and equity, which she explained did not permit an injunction against Yelp as a non-party to the case. In large part, Justice Kruger's opinion tracked an amicus brief that Wilson Sonsini Goodrich & Rosati submitted on behalf of Google. As WSGR's brief explained, and as Justice Kruger concluded, long-standing rules, both in California and around the country, limit the circumstances in which injunctions can be imposed on persons or entities who are not parties to a given case. Those rules generally do not permit Yelp or other similarly situated online service providers to be enjoined based on the actions of their users.
While the plurality opinion confirms that the CDA will continue to provide broad protections for online services in California against nonparty injunctions demanding the removal of user-submitted content, the decision was agonizingly close. Three justices dissented, finding that the CDA would not necessarily bar a removal order against the service provider. They reasoned that the injunction did not hold Yelp liable for the defamatory review, but instead directed Yelp to help effectuate the court's remedy. In that context, the dissenters argued, Yelp was not itself being held liable as a publisher of the third-party content, but merely being called upon to remove it. The strong dissents in the case make clear that online services need to remain vigilant against further attempts to undermine the CDA's essential protections.
For more information about the court's decision, Section 230, or any related matter, please contact Brian Willen, Lauren Gallo White, or any member of WSGR's Internet law and strategy litigation practice.