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California Supreme Court Strengthens Section 230 Protections for Online Speech

DEEPLINKS BLOG
July 24, 2018

California Supreme Court Strengthens Section 230 Protections for Online Speech

Special thanks to legal intern Miranda Rutherford who was the lead author of this post.

If someone sues you for a review you wrote on Yelp, can a court force Yelp to take down the review? This month, the California Supreme Court said “no” in the case Hassell v. Bird.

This case concerned a dangerous misinterpretation of Section 230, the law that protects online platforms from liability for their users’ speech. We’re glad that the California Supreme Court corrected this misinterpretation and upheld Section 230’s protections for online speech.

It all started with a bad review. Like many of us have, Ava Bird had a bad experience with a business—a law office headed by a lawyer, Dawn Hassell—and wrote a review on Yelp detailing her frustrations. Hassell wasn’t happy with the review and sued Bird for defamation. After Bird didn’t appear in court to defend the case, the trial judge entered a default judgment in Hassell’s favor, and ordered both Bird and Yelp to remove Bird’s Yelp review.

Yelp refused to take down the review and filed a motion to have the default judgment and removal order vacated. Yelp argued that the court order violated due process because Hassell hadn’t named the company as a defendant in the lawsuit and so the company hadn’t had its own day in court. Yelp also argued that the court order violated Section 230 (47 U.S.C. § 230).

Section 230 is the federal law that provides online platforms with broad immunity from liability for user-generated content. This means that a website like Yelp generally can’t be found liable for what its reviewers post. Congress first passed Section 230 in 1996 with the goal of promoting online free speech and innovation. Section 230 gives Internet intermediaries legal breathing room to create new products and services and to host online speech (in the words of the Supreme Court) “as diverse as human thought.” The law ensures that online platforms aren’t treated as accomplices to their users’ actions.

The trial court determined that Yelp was acting as an agent of Bird and thus could be ordered to remove the review, along with Bird. Yelp appealed to the California Court of Appeal, which also found that Yelp could be ordered to remove the review. The Court of Appeal found no due process problem and held that Section 230 didn’t apply because the removal order didn’t count as holding Yelp liable for user-generated content.

Yelp then appealed to the California Supreme Court. We filed an amicus brief supporting Yelp’s arguments; in particular, that it was still covered under Section 230 even though Hassell hadn’t originally sued Yelp.

The majority of the California Supreme Court agreed that the trial court’s removal order against Yelp was barred by Section 230. Chief Justice Cantil-Sakauye noted that Hassell tried to make a “procedural end-run” around Section 230. Hassell’s lawyers admitted that they had specifically avoided suing Yelp directly because they knew that Yelp could immediately invoke Section 230 to get out of the case. By not naming Yelp as a defendant, but then getting the trial court to issue a removal order against Yelp, Hassell thought she could bypass Section 230. Fortunately, the California Supreme Court saw right through this sneaky tactic. The Court held that by ordering Yelp to take down the review, the lower courts were treating Yelp as if it had written the review itself, rather that acknowledging that it was simply a host for Bird's speech. This is exactly the situation Section 230 was designed to cover.

This case was unique precisely because Yelp was not named as a defendant. Section 230, in part, protects online platforms from “liability” under state law for user-generated content. In a typical Section 230 case, the statute’s immunity applies where a website is itself sued for user speech (often alongside the user), which is a clear case of potentially imposing liability on the online platform. The California Supreme Court was the first state supreme court to consider whether a removal order against a non-party online platform also meets the liability requirement. The court agreed with Yelp that it does.

If it didn't take down the review, Yelp could be found in contempt of the court, resulting in monetary sanctions. The California Supreme Court also noted that Section 230 is not just meant to protect Internet intermediaries from legal liability, but also from the more general burdens of defending a case. The Court stated that such a removal order “can impose substantial burdens,” because it can harm an online platform’s business and lead to even more litigation. The Court also expressed concern that such removal orders could lead to fraud. In short, as the Chief Justice stated, “the extension of injunctions to these otherwise immunized nonparties would be particularly conducive to stifling, skewing, or otherwise manipulating online discourse.”

In a separate concurrence, Justice Kruger focused on Yelp’s due process arguments. She concluded that the only way the removal order against Yelp, as a non-party to the lawsuit, would be valid is if Yelp were considered to be Bird’s agent—that is, acting on her behalf. However, Justice Kruger said that there was no evidence that Yelp was acting as Bird’s agent or obstructing Bird’s ability to take down her review herself. The mere fact that an online platform hosts the speech of users does not turn the company into their legal agent. Furthermore, if there was a dispute as to whether Yelp had a legal obligation as Bird’s agent, due process rules would require Hassell to separately sue Yelp so that Yelp could have its own day in court.

Yet the Chief Justice wrote that while a non-party to a lawsuit may sometimes have to comply with a court order, when that non-party is an online platform, Section 230 must still be considered. And if the court order treats the online platform as the speaker or publisher of speech that originated with a user, then Section 230 bars the order. This is a critical point in the Supreme Court’s decision. Otherwise, some courts might consider non-party online platforms to be agents of their users (for example, in the words of one of the dissenting judges, because they use “algorithms” to distribute the users’ content) without also undergoing a Section 230 analysis. This would be a truly damaging end-run around Section 230 and would surely result in a flood of takedown orders, creating a new era of Internet censorship.

This isn’t just a great decision for free speech online; it’s also a good example of how an online platform can step up to the plate for its users. Online platforms should serve as the gatekeepers between users and what can be frivolous takedown orders, making sure that any orders to censor their users’ speech are carefully considered. Yelp did exactly that, and the California Supreme Court’s decision in Hassell v. Bird will enable even more companies to follow in its footsteps.

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