The Lawletter Vol 44 No 5
Amy Gore, Senior Attorney, National Legal Research Group
Dawn Hassell and the Hassell Law Group brought a defamation suit against a former client who posted a derogatory review of the attorney's services on the third-party platform, Yelp, which was not a party to the original action. A default judgment was entered that directed Yelp to remove the review and Yelp was served with the judgment. Yelp then objected to the enforcement of the judgment asserting that the judgment was invalid under the Due Process Clause and the Communications Decency Act of 1996, 47 U.S.C. § 230. The U.S. Supreme Court recently declined to hear an appeal of the decision issued by the California Supreme Court in this matter, making the state decision final. Hassell v. Bird, 5 Cal. 5th 522, 420 P.3d 776 (2018), cert. denied sub nom. Hassell v. Yelp, Inc., 139 S. Ct. 940 (2019).
Yelp's user agreement indicated that it would remove reviews it found to be defamatory, but it elected to retain the review forming the basis of the underlying suit. Yelp asserted that the directive order violated § 230 of the Communications Decency Act, which afforded immunity to "providers of interactive computer services against liability arising from content created by third parties." There was no dispute that had Yelp been named a defendant in the underlying action, it would have been entitled to claim the immunity afforded under § 230, which would have shielded the provider from monetary and injunctive relief. The order of removal treated Yelp as a publisher of the derogatory reviews by challenging its decision to post the reviews in question. Subjecting Yelp to the removal order, and the extensive litigation that followed, would defeat the immunity offered under the statute. While the immunity granted platform providers under § 230 seems secure in the defamation arena as a result of the Supreme Court's denial of review, the Act was recently amended by H.R. 1865, known as Fight Online Sex Trafficking Act, which will limit the immunity of § 230 for computer services providers who knowingly allow content that promotes or facilitates sex trafficking, including consensual sexual activity. The amendment to the Communications Decency Act further imposes criminal liability on the providers. While the newer legislation fails to directly curtail sex traffickers, it does limit the ability of internet providers to publish third-party content.