Case Brief: Hassell v. Bird

Earlier this month, the Court of Appeal for the State of California decided an important issue involving popular consumer review website Yelp.com. It found that Yelp could be ordered to take down certain defamatory statements a Yelp user posted to the site.

What makes the decision particularly interesting is that Yelp wasn’t part of the original defamation lawsuit and had not been found liable for defamation. Sites like Yelp have broad protection from liability for content other people publish to their sites under a variety of laws and principles of free speech. It is not unusual to see lawsuits against only the person who authored the defamatory statements. The unique aspect is the finding that Yelp can still be forced to remove those defamatory statements even when it is not a party to the defamation suit.

The 2016 decision in Hassell v. Bird, comes at the end of over three years of litigation. Ava Bird briefly was a client of attorney Dawn Hassell in California in the summer of 2012. Ms. Bird expressed her dissatisfaction with Ms. Hassell’s services by posting negative reviews about Ms. Hassell on Yelp.com in early 2013.

In February 2013, Ms. Hassell sued for Ms. Bird for defamation and eventually obtained a default judgment against Ms. Bird after Ms. Bird failed to answer the complaint against her.

The judgment held Ms. Bird liable for defamation and included an order Ms. Bird remove the defamatory reviews from Yelp. The specific statements Ms. Bird was required to take down were listed in an exhibit attached the judgment. Ms. Bird did not appeal the judgment against her after it became final in March 2014.

Ms. Bird did not remove her posts despite the order to do so.

The judgment in the case also contained an order requiring Yelp to remove Ms. Bird’s reviews even though Yelp had not been a party to the lawsuit against Ms. Bird.

This removal order is how Yelp got involved in the case. Interestingly, the case doesn’t discuss that unlike some reviewer sites, Yelp allows users to edit or remove the content they create and publish so that in theory, Ms. Hassell would only have needed to enforce the order against Ms. Bird and would not have needed to involve Yelp at all.

Yelp moved to vacate the entire judgment. When the court denied Yelp’s motion, Yelp appealed. The California Court of Appeal however, found Yelp could be made to comply with the removal order. It found Yelp, a nonparty to the lawsuit against Ms. Bird, can be made to comply because of its relationship to the party already subject to the injunction.

An important question was what Yelp’s relationship to Ms. Bird was.

According to Ms. Hassell, Yelp was “aiding and abetting [Ms.] Bird’s violation of the injunction” against Ms. Bird. Ms. Bird had been ordered to remove her statements from Yelp. She did not remove them. According to the trial court’s findings, Yelp drew more attention to those reviews; refused to acknowledge or follow the court order requiring Yelp to take them down; and tried to vacate the judgment against Ms. Bird rather than focusing only on the parts that applied to Yelp. In those ways, the lower court found Yelp aided Ms. Bird in violating the terms of the injunction against her.

The Court of Appeal said the lower court’s finding Yelp aided and abetted Ms. Bird did not affect their decision. Rather, it focused on two other factors. First, a court can issue injunctions preventing the repetition of proven defamation. Second, the Court of Appeals pointed to the long-standing ability for courts “to fashion an injunctive decree so that the enjoined party” such as Ms. Bird in this case, “may not nullify it by carrying out the prohibited acts with or through a nonparty” such as Yelp. Because Ms. Bird had used and could continue to use Yelp to publish or draw attention to already-published defamatory statements, the lower court had the authority to order Yelp to take down proven defamation.

The Court of Appeal agreed Yelp must only remove statements proven defamatory and covered by the injunction. So although it upheld the order for Yelp to remove Ms. Bird’s statements, it remanded the case back to the trial court to narrow the removal order and limit it only to the statements originally listed in Ms. Hassell’s judgment against Ms. Bird.

Few sites are willing to take down reviews simply because the person or business targeted in the review reports abuse, harassment, defamation, or other violations of the site’s terms of use. Some require a court order or judgment on the merits (not a default judgment) against the site itself. This decision suggests individuals may be able to compel sites to remove reviews with a default judgment or other court order in the right circumstances, without naming the site itself in a lawsuit. It is likely Yelp will appeal to the California Supreme Court but the Supreme Court can, in its discretion, choose not to hear the case.

By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2016. All rights reserved.

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