California Supreme Court Affirms Broad Section 230 Immunity

In a closely watched case, the California Supreme Court on Monday confirmed it will continue to broadly interpret the immunity provided by Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Hassell v. Bird, S235968 (Cal. July 2, 2018). The court reversed an order requiring the online review website Yelp to take down an allegedly defamatory review that had been posted by a third party.

Factual Background

In Hassell, attorney Dawn Hassell and her law firm sued Ava Bird, a former client, after Bird allegedly posted negative reviews on Yelp, a website that publishes reviews and ratings of businesses and other entities. The lawsuit sought damages as well as injunctive relief that would have required Bird to remove the reviews. It did not name Yelp, nor seek any relief (injunctive or otherwise) from Yelp. At Hassell’s request, the court entered a default judgment, which ordered Bird and Yelp to remove the allegedly defamatory reviews.

After Hassell pressured Yelp to comply with the order, Yelp filed a motion to set aside and vacate the judgment, arguing that it violated Yelp’s due process rights and was barred by Section 230. The superior court denied the motion, reasoning that Yelp had been aiding and abetting Bird’s violation of the injunction through its continued publication of the reviews. 

Section 230 Ruling

Section 230(c)(1) states that “[n]o 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.” Section 230(e)(3) states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Courts have afforded websites broad immunity under this provision, barring claims that seek to hold websites responsible for content provided by their users.

The Court of Appeal affirmed the trial court’s decision, holding that the trial court’s removal order was permissible because it did not “impose any liability on Yelp.” The court refused to follow cases holding that Section 230 applies to injunctive relief because in those cases, it said, there had not been a “judicial determination that defamatory statements had, in fact, been made…”

The California Supreme Court reversed. In an opinion by the court’s chief justice, the court concluded that “[w]here, as here, an Internet intermediary’s relevant conduct in a defamation case goes no further than the mere act of publication—including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous—section 230 prohibits this kind of directive.” (Citations omitted.) In other words, “[t]he duty that plaintiffs would impose on Yelp … wholly owes to and coincides with the company’s continuing role as a publisher of third party online content.”

The court underscored the need to interpret Section 230 to accomplish its intent to promote the flow of information on the Internet. In particular, the court noted that had Yelp been named as a defendant, it would have been entitled to immunity, and held that Section 230 barred this effort to “accomplish indirectly what Congress has clearly forbidden … directly.” The court also emphasized the fact that plaintiffs’ “maneuver, if accepted, could subvert a statutory scheme intended to promote online discourse and industry self-regulation,” as other plaintiffs would file similar lawsuits to effectuate an “end-run” around Section 230 immunity.

The court “conclude[d] that in light of Congress’s designs with respect to section 230, the capacious language Congress adopted to effectuate its intent, and the consequences that could result if immunity were denied here, Yelp is entitled to immunity….”

Two justices joined the chief justice’s opinion, and a fourth justice wrote a concurring opinion, stating she would have decided for Yelp on due process grounds, but that she agreed Section 230 also barred the removal order—creating a majority on the Section 230 holding. Three justices dissented. The plurality opinion took direct aim at the dissents, stating that “[t]he narrow, grudging view of section 230’s immunity provisions advanced in both dissents is at odds with this court’s analysis in Barrett, and for that matter with the views of virtually all courts that have construed section 230.”

Davis Wright Tremaine LLP attorney Thomas R. Burke represented Yelp in the Court of Appeal, along with former DWT attorney Deborah Adler. Mr. Burke and DWT attorney Rochelle L. Wilcox represented Yelp in the California Supreme Court. Yelp was also represented by its in-house counsel, Aaron Schur.