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Jul 9 2018   8:00AM GMT

Wait, You Can be Fined a Half-Million Dollars for a Negative Yelp! Review?

Sharon Fisher Sharon Fisher Profile: Sharon Fisher


The California Supreme Court has ruled that online services such as Yelp!, which depend on user-generated content (UGC), can’t be forced to take down that content by a legal proceeding against the user who generated it if the legal proceeding didn’t mention the online service in the first place.

Like the Supreme Court’s recent Carpenter ruling, this is another one of those cases where the American Civil Liberties Union and the Libertarians were working together, on a  case that was appealed to the California Supreme Court.

“Personal-injury lawyer Dawn Hassell of the Hassell Law Group accused former client Ava Bird of defaming her law firm on Yelp,” writes Zuri Davis in Reason. “Hassell sued Bird in 2013, but Bird did not appear—it is believed that Bird was never served with court papers. The San Francisco County Superior Court ruled in Hassell’s favor by default and awarded her $557,918. The court ordered Bird to remove the reviews and Yelp to ‘remove all reviews posted by AVA BIRD under user names “Birdzeye B.” and “J.D.,”'” despite not having definitively confirmed that Bird used the alias ‘J.D.’”

So let’s unpack this a little bit:

  • Somebody had a bad experience with a company.
  • The person posted a negative review on Yelp! like many of us do.
  • The company sued them (apparently, according to NBC News, because of the person “falsely claiming that her firm failed to communicate with the client”).
  • The person who posted the review might not have heard about the lawsuit.
  • Some of the reviews for which they were sued might not have been written by them.
  • They now owe more than a half-million dollars and are supposed to take the reviews down.
  • Yelp!, which wasn’t even a party to the case, is told it has to take down the postings, since the person they’re attributed to – who, again, might not have written them and might not have been notified – isn’t taking them down. And that’s the part that got all the lawyers excited.

“WTF???” wrote attorney Eric Goldman in 2016 about the original decision, where the California appellate court upheld the lower court’s ruling. “As a non-party to the lawsuit, the court says Yelp doesn’t face liability from the suit itself, and the court thinks contempt sanctions–including the possibility of monetary damages–against a non-party don’t count as ‘liability’ because it’s ‘a different type of liability’? And a judicial compulsion to remove content that Yelp chooses to publish doesn’t treat Yelp ‘as a publisher or distributor’? Wow.”

(One has to admire a legal professional who can write an opinion saying, not once, not twice, but three times, “WTF?” And this particular opinion was cited lots of times about this case, WTF and all.)

“Neither court” – the lower one or the appellate one – “seemed to understand that the First Amendment protects not only authors and speakers, but also those who publish or distribute their words,” wrote the Electronic Frontier Foundation in April, when it also submitted an amicus. “Both courts completely precluded Yelp, a publisher of online content, from challenging whether the speech it was being ordered to take down was defamatory—i.e., whether the injunction to take down the speech could be justified.”

Now, however, the California Supreme Court has ruled that both the lower and appellate courts were wrong, and Yelp! doesn’t have to remove the reviews in question (assuming they’re still there; it seems like Yelp! is pretty busy right now removing postings from the company’s page).

To be honest, the aspect of this case that freaks me out the most is one that nobody is even mentioning: Someone can be fined a half-million dollars for libel by posting a negative review on Yelp!? When she might not even have been properly served in the first place? Yikes! I hope she’s fighting this. I’m surprised Yelp! isn’t helping her with this; getting its users sued for a half-million dollars for the posts on which its service is built on can’t be good for the online commenting business.

Meanwhile, the Hassell Law Group (interesting name) is reportedly considering appealing the case to the Supreme Court. Hopefully, nobody tries to give them a bad Yelp! review over it.

2  Comments on this Post

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  • freedom1mac
    This is a sad case of injustice. I think some Judges need to be replaced or read the Constitution of the United States along with the Bill of Rights! Too much stupidity in the World!
    10 pointsBadges:
  • TheRealRaven
    I'm clearly not understanding something. As of yet, there appears to be no "injustice" and Yelp appears only to be needing to remove the actual libelous posts that are directly attributable to Bird and that Bird did not remove. And It's not quite clear that much of the case was overturned by the California Supreme Court which apparently rather mostly affirmed lower court rulings, saying only that the Appellate Court should narrow its reasoning and that Yelp need not yet remove posts not clearly from Bird.

    • The September 2014 0rder denying Yelp's motion to vacate the Bird judgment is affirmed, but this case is remanded to the trial court with the direction to narrow the terms of the removal order in the January 2014 judgment by limiting it to the specific defamatory statements that were listed on exhibit A of that judgment. The parties are to bear their own costs of appeal.
    (Emphasis added.)

    Note that the "libel" element has been affirmed throughout. The only element that might change is that Yelp might not need to remove posts from a userid that might not be Bird. (The lower court might still find legal reasoning that gives the same result.)

    Note that no matter any secondary issues, the posts have been found legally to be defamatory, i.e., they've been found to be intentionally false with malice..The California' Supreme Court's primary objection to the lower courts' rulings is that 47 U.S.C. s. 230 was inappropriately applied to Yelp. The lower court needs to reconsider its reasoning on that point. It's still possible that some other law might fit the circumstances better.

    And it's still possible that those posts from a different Yelp userid could be shown to originate from Bird. There's been no evidence that says otherwise yet. There's only been a lack of presented evidence that links the posts to Bird; that doesn't mean that no evidence exists -- only that it wasn't needed for the original default judgment.

    In any case, it's been 4 and a half years since the original case, and Bird has apparently not filed any appeal on the issue of libel. Lack of legal notice would seem to me to be more than sufficient for filing.

    We can only assume that Bird is forced to admit the deliberate and malicious falsities in the posts and their resulting damages. That much of the judgment therefore seems correct.

    For the Yelp portion, we still don't know and won't until the lower court takes the case up again.
    30,205 pointsBadges:

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