Column: Yelp may have just saved the internet — but the court ruling in its favor is a dangerous muddle
It’s being held as a landmark ruling for free speech on the internet, and a ringing endorsement of what’s been called “the most important law on the internet.”
But a California Supreme Court decision protecting the refusal of the online review site Yelp to remove several postings deemed to have defamed a San Francisco lawyer may have left too many questions about the rights and responsibilities of online platforms unresolved.
That’s the view of Eric Goldman, an expert on technology and marketing law at Santa Clara University who has followed the case closely during the two years it has meandered through state courts. He observes that the seven justices split 3-1-3 on the various issues raised by the parties in a lawsuit known as Hassell vs. Bird.
The court answered the immediate question that was asked: Does Yelp have to remove the posts? The answer is no.
Internet law expert Eric Goldman
That’s a problem, considering that the central issue are the duties of an online platform—Yelp, in this instance--to police what gets posted on its website. “This case has gotten the attention of everyone who’s anyone in the user-generated content space,” Goldman told me in 2016. Among the friend-of-the-court notices filed at one point or another was a joint letter from Facebook, Microsoft and Twitter and another from 31 online and print news organizations, including The Times.
Such platforms “are instrumental in how modern society communicates,” Facebook, Microsoft and Twitter said in their letter, adding that they “receive thousands of requests every day seeking review or removal of content...Requesters seek to block speech because they disagree with or do not like it or because they believe it is threatening, obscene, fraudulent or in the present case, defamatory.”
Preserving the vibrancy of discussion online, they wrote, depends on upholding the rights that online platforms have to make their own judgments about the material they host without interference from the courts.
Yelp, for its part, declared victory in “a case that had threatened the rights of online platforms that allow people to freely share their thoughts and the billions of people that do so.”
To recap briefly, the decision handed down Monday by the Supreme Court originated in an obscure 2012 slip-and-fall case. The plaintiff, Ava Bird, hired the law firm of Dawn Hassell. According to a lawsuit Hassell eventually filed against her client, the professional relationship lasted 25 days, during which Bird failed to return the firm’s emails and phone calls and missed a key appointment. Finally, Hassell sent Bird a polite email advising her to find another lawyer.
Bird didn’t respond, but the San Francisco trial judge also issued a default judgment ordering Yelp to remove Bird’s review. Yelp refused, arguing that the order overlooked its immunity from liability for what its users post on its review pages. That’s according to Section 230 of the 1996 Communications Decency Act, which protects online publishers that host user comments.
A state appellate court upheld the judge’s order, and so the matter landed before the Supreme Court.
The plurality opinion by Chief Justice Tani Cantil-Sakauye fully upheld Yelp’s immunity under Section 230. Under that law, she found, Yelp can’t be held responsible as “a publisher of third party online content” for what its users post on its site.
With the concurring fourth vote, Goldman told me, “the court answered the immediate question that was asked: Does Yelp have to remove the posts? The answer is no.”
But how the ruling will apply to other attempts to scrub allegedly offending material from the internet remains uncertain.
The dissent by Justice Mariano-Florentino Cuéllar says that the near-absolute immunity the plurality confers on Yelp is “categorical absolution written in invisible ink”: That is, it can’t be found in Section 230 itself.
His fellow dissenter, Goodwin Liu, argued that the lower courts didn’t really saddle Yelp with any legal liability—it was only ordered to remove material a court had already ruled to be defamatory.
The four-judge opinion frowning on Hassell’s default judgment against Yelp is an important aspect of the case, Goldman says. If the Court had blessed Hassell’s strategy, “it would have opened the floodgates of plaintiffs seeking default judgments.” Online platforms already are arguably too willing voluntarily to take down content that someone objects to, even when their claims are dubious.
Giving complainants another tool to send ostensibly offending content to the memory hole would result in Web publishers publishing nothing even remotely negative. In the case of a review site like Yelp, only positive reviews would survive, destroying the site’s usefulness.
Still, Goldman fears that the 3-1-3 ruling leaves open many questions about how Section 230 should apply and how to define the role of online intermediaries like Yelp. Is it a neutral publisher of others’ opinions, and therefore entitled to immunity? Or did it “aid and abet” Bird, as Cuellar hints, taking it outside Section 230’s protection?
The lack of recourse for the victims of online libel or abuse “is on all our minds,” Goldman agrees. “Any of us could be the victim of an online attack.” But that isn’t really relevant in this case, he points out. Hassell did get recourse—she sued her attacker, and won a defamation judgment and an order that Bird take down the defamatory posts. But she hasn’t gone the last mile to enforce the order against Bird—instead, she tried to enforce it against Yelp, which she hadn’t sued. (Hassell and her attorney didn’t return calls for comment.)
Goldman cautions that Justice Leondra Kruger expressed misgivings with Section 230 immunity. She cited a 2006 California case that mentioned the “troubling consequences” of that immunity. She said that although it’s up to Congress to address them, state courts should tread carefully, lest they forbid broader legal actions against online platforms than Congress intended.
“So plaintiffs and future courts can find 4-vote majority propositions between the dissents plus Justice Kruger,” Goldman wrote. “That’s a good sign that courts citing this precedent will reach conflicting results. Something to look forward to.”