Courts Of Appeal Give Yelp Arguments Re: Reviewer Anonymity One Star
In the ongoing battle over First Amendment rights to anonymity online, two recent California Court of Appeal decisions involving lawsuits against anonymous reviewers on Yelp.com (together with its owner, Yelp Inc., “Yelp”) provide a tentative roadmap for businesses and individuals seeking protection from defamatory online posts.
Hassell v. Bird (Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1341-1343), decided in 2016, involved Yelp reviews left on a law firm’s Yelp page by a former client. The former client, Ava Bird, allegedly left a review of attorney Dawn Hassell under a pseudonym accusing Hassell of “ma[king] a bad situation worse for me,” and reneging on her obligations because “her mom had a broken leg” and because “the insurance company was too much for her to handle.” The review also stated: “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 … .” Bird also allegedly posted a second negative review under another pseudonym.
Hassell subsequently filed a lawsuit for defamation, trade libel, and injunctive relief, among other claims, against her reviewer. When Bird did not appear, the trial clerk entered default and, after a prove-up hearing, the trial court entered default judgment. At the hearing, the Court awarded general and special damages and costs totaling $557,918.75 against Bird.
Importantly, the judgment also included an injunction ordering Yelp to remove the defamatory reviews. In pertinent part, the injunction states:
“Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court's order.”
After Hassell served the judgment on Yelp, Yelp refused to comply with the judgment and remove the postings and subsequently moved to set aside and vacate the judgment.[i] The trial court denied Yelp’s motion to set aside and vacate the judgment and Yelp appealed. On appeal, the First District Court of Appeal affirmed.
In its opinion, the Court of Appeal rejected Yelp’s procedural argument that the trial court could not enjoin Yelp because Yelp was not a party to the lawsuit, citing cases holding that an injunction can be applied to nonparties “with or through whom the enjoined party may act.” Thus, the Court held that “a trial court does have the power to fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonparty to the original proceeding.”
The Court also rejected Yelp’s argument that the removal order was barred under 47 U.S. Code § 230, part of the Communications Decency Act of 1996 (the “CDA”). Under Section 230, “[n]o provider or user of interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” and “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with [Section 230].” 47 U.S.C. § 230. Courts have broadly construed Section 230 “to afford interactive service providers broad immunity from tort liability for third party speech.” However, the Court held that the trial court’s injunction does not impose any liability on Yelp, but merely requires Yelp remove the offending posts.
Accordingly, the Court of Appeal affirmed the trial court’s ruling denying Yelp’s motion. Subsequently, the California Supreme Court granted Yelp’s petition for review. 13 amicus briefs have been filed, 12 in support of Yelp and one supporting Hassell. The briefs in support of Yelp were filed on behalf of the likes of the ACLU, Airbnb, Google, Change.org, and Eugene Volokh. The lone brief in support of Hassell was filed on behalf of Erwin Chemerinsky, a constitutional law professor and Dean of the U.C. Berkeley School of Law. The matter has not yet been scheduled for oral argument.
Just this month, the Fourth District Court of Appeal handed Yelp another defeat in Yelp Inc. v. Superior Court (Yelp Inc. v. Superior Court (Nov. 13, 2017, Nos. G054358, G054422) 2017 Cal. App. LEXIS 995). In that case, the plaintiff, an accountant, filed suit for trade libel against a former client who left a negative review on Yelp.[ii] The review, posted under the name “Alex M.” read:
Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.
As in Hassell, Yelp was not a party to the lawsuit. However, the plaintiff subpoenaed records from Yelp to confirm that Alex M. was indeed the former client named as a defendant in the lawsuit. After Yelp refused to produce the subpoenaed records, the trial court granted the plaintiff’s motion to compel on the grounds that (1) Yelp lacked standing to enforce the anonymous reviewer’s First Amendment rights and (2) even if Yelp did have standing, the plaintiff had alleged facts sufficient to demonstrate that Alex M. review was defamatory and was thus entitled to discovery regarding the reviewer’s identity. Yelp filed a petition for writ of mandate with the Fourth District Court of Appeal. Amicus curiae briefs were filed on behalf of Google, Pinterest, Reddit, Snap, Twitter, and the Electronic Frontier Foundation, among others.
In its opinion, the Court of Appeal first addressed the issue of standing, holding that Yelp does have standing to assert its users’ First Amendment rights in response to a subpoena because “it has a substantial interest in protecting the right of its users to maintain their anonymity when posting reviews.”[iii]
The Court then addressed the weightier issue of whether the trial court properly ordered discovery of Alex M.’s identity, holding that it did. In its analysis, the Court of Appeal relied heavily on the First District Court of Appeal’s holding earlier this year in ZL Technologies, Inc. v. Does 1–7 (ZL Technologies, Inc. v. Does 1–7 (2017) 13 Cal.App.5th 603, 607). Following ZL Technologies, the Court of Appeal in Yelp Inc. held that “a plaintiff seeking discovery of the anonymous person’s identity must first make a prima facie case showing the comment at issue is defamatory,” or, in other words, present evidence sufficient to “support a ruling in favor of [the plaintiff] if no controverting evidence is presented.”
Like the court in ZL Technologies, the court in Yelp Inc. rejected any suggestion that there should be an additional balancing test conducted should the prima facie case for defamation be made. The Yelp Inc. court also agreed with the ZL Technologies court that before information identifying an anonymous poster may be ordered produced, reasonable efforts must be made to notify the poster and permit them an opportunity to respond to the request. Both courts agreed that the burden of making such notification is on the website host, not the plaintiff.
The Court in Yelp Inc. held that Alex M.’s review supported a prima facie case for defamation and upheld the trial court’s order requiring Yelp to produce information regarding Alex M.’s identity. As of this writing, Yelp has not appealed the order.
Taken together, Hassell and Yelp Inc. offer a potential roadmap for businesses seeking to protect themselves from defamatory online posts. An aggrieved business may first file a defamation lawsuit against the person it believes is the poster requesting monetary and injunctive relief. The business may subpoena the identity of the poster from the website host. It is the host’s responsibility to notify the poster of the subpoena. The host does have standing to challenge the subpoena. However, as long as the post is arguably defamatory, the host will be ordered to identify the poster. After the identity of the poster is confirmed, the business may prosecute the case to judgment against the poster and obtain an injunctive order broad enough to require the host to remove the offending post. While this process is somewhat involved, its existence may provide businesses with sufficient leverage to force many posters remove offending posts without litigation.
Moreover, the Court’s holding in Hassell that injunctive relief does not constitute liability under the CDA leaves the door open to obtaining injunctive relief against website hosts directly as long as there has been a trial determination that the speech in question is defamatory.
It remains to be seen, however, whether the Supreme Court and, perhaps ultimately, the Legislature agree with the structure set forth in Hassell and Yelp Inc. for adjudicating the conflict between the First Amendment right to remain anonymous online and the right to obtain relief for defamatory speech.
Brian Lauter is a Shareholder at Eanet, PC. Eanet, PC is a boutique law firm focusing on business litigation, real estate litigation, labor and employment litigation, and corporate transactions.
[i] In a letter to Hassell’s attorney, Yelp threatened to file an anti-SLAPP motion to strike pursuant to Code of Civil Procedure section 425.16 “as it has done in the past in similar cases” if Hassell brought contempt proceedings or a lawsuit against Yelp for its failure to comply with the judgment. However, such an anti-SLAPP motion would likely fail as Hassell would likely have little difficulty satisfying the second anti-SLAPP prong by showing that she had a probability of prevailing since Yelp admittedly refused to comply with the judgment. See Wong v. Jing (2010) 189 Cal.App.4th 1354 (upholding portion of trial court order denying anti-SLAPP motion by Yelp reviewer to strike libel claim brought by business owner on grounds second prong was met).
[ii] Trade libel is a close cousin of defamation that may be brought with respect to “an injurious falsehood directed at the organization or products, goods, or services of another.” Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1035; see Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 291 (trade libel is “a knowingly false or misleading publication that derogates another's property or business and results in special damages.”).
[iii] The Court rendered this “substantial interest” requirement nearly meaningless by relying heavily on Yelp’s terms of service, presumably drafted by Yelp itself, in determining whether Yelp has a substantial interest in protecting the First Amendment rights of its users.