In a published decision filed on June 7, 2016 in Dawn Hassell v. Ava Bird, Case No. A143233, the Court of Appeals for the State of California, First Appellate District, determined that the trial court’s order requiring Yelp to take down content – which had been posted by the Defendant Ava Bird and which the court found to be defamatory – from its website did not violate Yelp’s First Amendment rights. The Court noted, however, that to the extent that the trial court’s order required Yelp to take down subsequent posts from Bird or anyone else, it was an overbroad prior restraint on speech.
The Court’s order, which touched upon a number of issues, notes that Yelp was a nonparty to the underlying action. The plaintiffs – a lawyer and her law firm – alleged that Bird, under various usernames, had posted defamatory reviews on Yelp after the plaintiffs had withdrawn from representing Bird. In that action, the trial court entered a default judgment against Bird after she had failed to answer the plaintiffs’ complaint. Subsequently, the plaintiffs filed a notice of hearing on the default judgment and a request for injunctive relief, and argued the merits of the case. The court held a default prove-up hearing, in which it considered all the evidence and arguments put forth by plaintiffs, and entered judgment against Bird, finding her posts on Yelp to be defamatory. As part of its judgment, the trial court ordered non-party Yelp to remove all reviews posted by Bird under her various usernames, as well as “any subsequent comments” posted under those usernames. (Order, p. 6.)
After the plaintiffs attempted to enforce the judgment, Yelp objected, eventually moving the trial court to vacate and set aside the judgment. The court denied Yelp’s motion, finding, among other things, that the injunction could be applied to a non-party (i.e., to Yelp). Yelp appealed.
Yelp argued that the trial court was without authority to include a provision in the injunction that ordered Yelp to take down Bird’s posts. The appellate court disagreed. “[O]ur Supreme Court has explicitly confirmed that injunctions can be applied to nonparties in appropriate circumstances.” (Id., p. 19 (citing Ross v. Superior Court (1977) 19 Cal.3d 899, 906).) Yelp also argued that the First Amendment protected its right “to distribute the speech of others without an injunction” and that such rights could not be denied without notice of a proceeding and an opportunity to be heard. (Id., p. 21.) The court rejected Yelp’s argument, finding that (1) Yelp had not itself engaged in protected speech, nor did the removal order “treat Yelp as a publisher of Bird’s speech,” instead finding that, in this context, Yelp acted more like “the administrator of the forum that Bird utilized to publish her defamatory reviews”; (2) even if Yelp was acting as a distributor of Bird’s content (and therefore entitled to have its speech constitutionally protected), applicable authority did not support Yelp’s argument that a “distributor of third party speech has an unqualified due process right to notice and a hearing before distribution of that speech can be enjoined”; and (3) unlike the authority cited by Yelp, the speech at issue here was found to be defamatory, rather than just being suspected of being unlawful. (Id., pp. 22-23.) In addition to these findings, the appellate court agreed with Yelp that the portion of the trial court’s order requiring Yelp “to remove subsequent comments that Bird or anyone else might post” was “an overbroad restraint on speech.” (Id., p. 25.)
Finally, the appellate court rejected Yelp’s argument that Section 230 of the Communications Decency Act – designed to further “First Amendment and e-commerce interests on the Internet” (Id., p. 26) – applied to Yelp and that Section 230 voided the trial court’s removal order. To be eligible for Section 230 immunity, a defendant must show that: it is a provider or user of an “interactive computer service”; the cause of action treats the defendant as a publisher or speaker of information; and the information at issue must be provided by another information content provider. (Id. at pp. 27-28 (citing Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 804-05).) The appellate court rejected Yelp’s claim of Section 230 immunity, reasoning that the plaintiffs “filed their complaint against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was [sic] awarded damages and injunctive relief against Bird, not Yelp.” (Id., p. 28.) In other words, the removal order imposed no liability on Yelp, so Section 230 did not apply.