Clever Lawyering Does Not Thwart Communications Decency Act Immunity
Despite a recent trend indicating that it might be on life support, immunity under the Communications Decency Act (CDA) remains alive and kicking, at least in California. Based on Section 230 of the CDA, on July 2, 2018, the California Supreme Court, in a highly anticipated and closely watched decision, ruled that crowd-sourced review website Yelp could not be ordered to remove a third-party review that had been deemed defamatory by the lower court.
In Hassell v. Bird, Dawn Hassell, a personal injury attorney, sued Ava Bird, an individual who had posted an unfavorable Yelp review about the plaintiff. Hassell admitted that she purposefully did not name Yelp as a defendant in order to avoid CDA immunity. When the named defendant did not appear, Hassell secured a default judgment against Bird. Part of the judgment entered by the court included an injunction ordering both Bird and Yelp to remove the defamatory review at issue.
Yelp intervened in the case and asserted it could not be ordered to remove the defamatory review because such an order would violate Yelp’s CDA immunity. The trial and appeals courts both rejected Yelp’s argument, finding that by refusing to take down the review, Yelp was aiding and abetting Bird’s violation of the injunction and therefore could be enjoined as well.
The Supreme Court reversed, “[w]here, as here, an Internet intermediary’s relevant conduct in a defamation case goes no further than the mere act of publication – including refusal to depublish upon demand, after a subsequent finding that the published content is libelous – [the CDA] prohibits this kind of directive.”
But this was far from clear guidance. Only three justices adopted the broad reading of the CDA and held that litigation strategy cannot be used to thwart the statutory immunity granted by the CDA. A fourth justice concurred in the judgment, but relied on due process principles to argue that as a non-party, Yelp could not be enjoined. Three justices dissented, finding the CDA did not necessarily bar an injunction ordering removal of offending content by the service provider. They reasoned that Yelp was not itself being held liable as a publisher of third-party content, but merely being called upon to remove it. Given the plurality decision, its long-term implications are not entirely clear.
We do know for sure, in light of ever-mounting pressure from advertisers, legislators and regulators, as well as from their own employees, more and more companies are taking affirmative and voluntary steps to prevent or remove abuse and hate speech on their services. For the moment, these companies can rest easy in the knowledge that, at least in California, the CDA’s immunity will protect their decision about what speech to remove from their service.
As noted by Yelp’s deputy general counsel in a blog post, “[w]ith this decision, online publishers in California can be assured that they cannot be lawfully forced to remove third-party speech through enterprising abuses of the legal system …,” which is true. However, the recent trend of holdings as well as the vigorous dissents in the case at issue make clear that the CDA’s immunity may not always be absolute and that courts citing this precedent may reach conflicting results. Only time will tell.