Hassell v. Bird

• Decision Date: 02 July 2018
• Docket Number: S235968
• Citation: 5 Cal.5th 522,234 Cal.Rptr.3d 867,420 P.3d 776
• Court: California Supreme Court
• Parties: Dawn L. HASSELL et al., Plaintiffs and Respondents, v. Ava BIRD, Defendant; Yelp Inc., Objector and Appellant.

5 Cal.5th 522

420 P.3d 776

234 Cal.Rptr.3d 867

Dawn L. HASSELL et al., Plaintiffs and Respondents,

v.Ava BIRD, Defendant;

Yelp Inc., Objector and Appellant.

S235968

Supreme Court of California.

Date Filed: July 2, 2018

Aaron Schur ; Davis Wright Tremaine, Thomas R. Burke, San Francisco, Deborah A. Adler and Rochelle L. Wilcox, Los Angeles, for Objector and Appellant.

Wilmer Cutler Pickering Hale and Dorr, Patrick J. Carome, Ari Holtzblatt and Mark D. Flanagan, Palo Alto, for Airbnb, Inc., Automattic Inc., craigslist, Inc., Facebook, Inc., IAC/InterActiveCorp, Reddit, Inc., Snap Inc., Pinterest, Inc., Thumbtack, Inc., Twitter, Inc., and Yahoo! Inc., as Amici Curiae on behalf of Objector and Appellant.

J. Joshua Wheeler ; Katie Townsend, Bruce D. Brown, Gregg P. Leslie and Ariel B. Glickman for The Reporters Committee for Freedom of the Press, The Thomas Jefferson Center for the Protection of Free Expression, American Society of News Editors, Association of Alternative Newsmedia, BuzzFeed, The E.W. Scripps Company, International Documentary Association, Investigative Reporting Workshop at American University, The McClatchy Company, Media Law Resource Center, MPA—The Association of Magazine Media, National Press Photographers Association, News Media Alliance, Online News Association, Radio Television Digital News Association, Reporters Without Borders, The Seattle Times Company, Society of Professional Journalists, Student Press Law Center and Tully Center for Free Speech as Amici Curiae on behalf of Objector and Appellant.

Wilson Sonsini Goodrich & Rosati, David H. Kramer, Palo Alto, Shelby Pasarell Tsai, San Francisco, Brian M. Willen and Jason B. Mollick for Google Inc., as Amicus Curiae on behalf of Objector and Appellant.

NYU Technology Law & Policy Clinic and Jason M. Schultz for Change.org, Engine, GitHub, Inc., A Medium Corporation, Patreon, Inc., SiteJabber and Wikimedia Foundation, Inc., as Amici Curiae on behalf Objector and of Appellant.

Public Citizen Litigation Group, Paul Alan Levy; Juelsgaard Intellectual Property and Innovation Clinic, Phillip R. Malone, Jef Pearlman, Daniel Chao and Erica Sollazzo for Public Citizen, Inc., and Floor64, Inc., as Amici Curiae on behalf of Objector and Appellant.

Greenberg Traurig, Ian C. Ballon, East Palo Alto, and Lori Chang, Los Angeles, for Glassdoor, Inc., and TripAdvisor LLC as Amici Curiae on behalf of Objector and Appellant.

Horvitz & Levy, Jeremy B. Rosen, Burbank, Scott P. Dixler and Matthew C. Samet for ACLU of Northern California, ACLU of San Diego & Imperial Counties, ACLU of Southern California, Avvo, California Anti-SLAPP Project, Electronic Frontier Foundation, First Amendment Coalition and Public Participation Project as Amici Curiae on behalf of Objector and Appellant.

University of Arizona College of Law and Jane Yakowitz Bambauer for First Amendment and Internet Law Scholars as Amici Curiae on behalf of Objector and Appellant.

Fenwick & West, Andrew P. Bridges, Tyler G. Newby, Guinevere Jobson and Armen N. Nercessian, San Francisco, for Internet Association and Consumer Technology Association as Amici Curiae on behalf of Objector and Appellant.

Brown White & Osborn, Kenneth P. White, Los Angeles, and Evelina Gentry for Ava Bird as Amicus Curiae on behalf of Objector and Appellant.

Anette J. Beebe ; Gingras Law Office and David S. Gingras for XCentric Ventures, LLC as Amicus Curiae on behalf of Objector and Appellant.

Scott & Cyan Banister First Amendment Clinic at UCLA School of Law and Eugene Volokh, Los Angeles, as Amici Curiae on behalf of Objector and Appellant.

Duckworth Peters Lebowitz Olivier, Monique Olivier, San Francisco, and J. Erick Heath for Plaintiffs and Respondents.

Harder Mirell & Abrams, Douglas E. Mirell, Beverly Hills, Charles J. Harder, Los Angeles, and Dilan E. Esper for Erwin Chemerinsky, Valencia Corridor Merchants Association, Derik Lewis, Aaron Morris and Henry Karnilowicz as Amici Curiae on behalf of Plaintiffs and Respondents.

CANTIL-SAKAUYE, C. J.

In this case, we consider the validity of a court order, entered upon a default judgment in a defamation case, insofar as it directs appellant Yelp Inc. (Yelp) to remove certain consumer reviews posted on its website. Yelp was not named as a defendant in the underlying lawsuit, brought by plaintiffs Dawn Hassell and the Hassell Law Group, and did not participate in the judicial proceedings that led to the default judgment. Instead, Yelp became involved in this litigation only after being served with a copy of the aforementioned judgment and order.

Yelp argues that, to the extent the removal order would impose upon it a duty to remove these reviews, the directive violates its right to due process under the federal and state Constitutions because it was issued without proper notice and an opportunity to be heard. Yelp also asserts that this aspect of the order is invalid under the Communications Decency Act of 1996, relevant provisions of which (found at 47 U.S.C. § 230, hereinafter referred to as section 230 )¹ relate, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" ( § 230(c)(1) ), and "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section" ( § 230(e)(3) ).

The Court of Appeal rejected Yelp's arguments. We reverse. The Court of Appeal erred in regarding the order to Yelp as beyond the scope of section 230. That court reasoned that the judicial command to purge the challenged reviews does not impose liability on Yelp. But as explained below, the Court of Appeal adopted too narrow a construction of section 230. In directing Yelp to remove the challenged reviews from its website, the removal order improperly treats Yelp as "the publisher or speaker of ... information provided by another information content provider." ( § 230(c)(1).) The order therefore must be revised to comply with section 230.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2012, defendant Ava Bird approached the Hassell Law Group, owned by Dawn Hassell (who is hereinafter referred to as Hassell), to represent her in a personal injury matter. That August, Bird and the law firm entered into a representation agreement. After e-mail exchanges and communication difficulties led Hassell to conclude that Bird was unhappy with the firm's performance, the Hassell Law Group withdrew from representation in September 2012. Hassell notified Bird of this decision via e-mail.

Several months later, on January 28, 2013, a one-star (out of five) review of the Hassell Law Group appeared on Yelp. This website, available to anyone with Internet access, provides a forum for reviews and ratings of businesses and other entities. Individuals with Yelp accounts author the reviews and issue the ratings. Individual reviews and ratings appear on the Yelp website together with the author's Yelp user name and location. A reviewed business may post a public response to a user review; this response will appear directly below the review on Yelp's website. Yelp also combines individual ratings into an aggregate rating for each business.

The one-star review was posted by Yelp user "Birdzeye B." from Los Angeles, California.

It provided in full (with the spelling, spacing, capitalization, and punctuation in this and all other quoted reviews per the originals) as follows:

"well, here is another business that doesn't even deserve one star. basically, dawn hassell made a bad situation much worse for me. she told me she could help with my personal injury case from falling through a floor, then reneged on the case because her mom had a broken leg

, or something like that, and that the insurance company was too much for her to handle. and all of this after i met with her office (not her personally, she was nowhere to be found) signed paperwork to 'hire' them and gained confidence in her office (due mostly to yelp reviews) so, in all fairness, i have to share my experience so others can be forewarned. she will probably not do anything for you, except make your situation worse. in fact, after signing all the paperwork with her office, like a broken record, they repeated 'DO NOT TALK TO THE INSURANCE COMPANY' over and over and over. and over and over. so I honored that and did not speak to them. but the hassell law group didn't ever speak with the insurance company either, neglecting their said responsibilities and not living up to their own legal contract! nor did they bother to communicate with me, the client or the insurance company AT ALL. then, she dropped the case because of her mother and seeming lack of work ethic. (a good attorney wont do this, in fact, they aren't supposed to) to save your case, STEER CLEAR OF THIS LAW FIRM! and research around to find a law firm with a proven track record of success, a good work ethic, competence and long term client satisfaction. there are many in the bay area and with some diligent smart

interviewing, you can find a competent attorney, but this wont be one of them."

Hassell believed Bird to be the author of this review, and sent her an e-mail. Hassell wrote Bird that "[y]ou are certainly free to write a review about your experience and provide constructive feedback. But slandering someone and intentionally trying to damage their business and reputation is illegal." Disputing statements in the review, Hassell requested that Bird remove or revise it, and wrote that "[i]f you are unwilling to talk to me or respond, I will assume you don't intend to work this out [with] me directly and I will retain a defamation attorney this week to file a legal action against you for slander and defamation." Bird responded with a lengthy e-mail of her own, in which she stated that Hassell would "have to accept the permanent, honest review [I] have given you."

Shortly thereafter, on February 6, 2013, another one-star review of the Hassell Law Group was...