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California’s top court is agreeing to hear a case in which a lower court has ordered Yelp to remove a bad review. The California Supreme Court did not say when it would hear the case that tests the Communications Decency Act, which San Francisco-based Yelp maintains protects it from having to remove content on its site posted by third parties.
The case concerns a June decision by a state appeals court that requires Yelp to remove a defamatory review about a law firm written by an unhappy client. A lower court issued a default judgement for over $500,000 against the reviewer, Ava Bird, for a review that the law firm claimed was defamatory. Bird was sued for defamation but was a no-show in court.
Eric Goldman, a Santa Clara University legal scholar, summed up the lower court’s decision. “Of course any removal order injures Yelp by usurping Yelp’s editorial policies about its content database. But because of the default judgment on defamation, the court can neatly sidestep that First Amendment injury by claiming that we know this content is beyond First Amendment protection,” Goldman wrote.
Here’s what the lower court ruled (PDF) in ordering Yelp to remove the post, a ruling that supported the position of the Hassell Law Group that sued Bird.
Yelp’s claimed interest in maintaining Web site as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment.
The court likened Yelp to a bulletin board.
In order to claim a First Amendment stake in this case, Yelp characterizes itself as a publisher or distributor. But, at other times Yelp portrays itself as more akin to an Internet bulletin board—a host to speakers, but in no way a speaker itself. Of course, Yelp may play different roles depending on the context. However, in this context it appears to us that the removal order does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.
The slippery slope this lower court ruling presents is simple, especially when it comes to reviews of lawyers: A lawyer sues a reviewer for defamation. The reviewer is a no-show in court. A judge issues a default judgment and orders the review site to remove the offending post.
Facebook, Microsoft, and Twitter told the seven-member California Supreme Court that the lower court’s ruling was a weapon to “silence a vast quantity of protected and important speech.”
The Supreme Court’s decision Wednesday to review the case comes three weeks after a federal appeals court ruled (PDF) that the Communications Decency Act of 1996 shields Yelp from being sued for libel in connection to a Yelp-site user’s negative review.
“We fail to see how Yelp’s rating system, which is based on rating inputs from third parties and which reduces this information into a single, aggregate metric is anything other than user-generated data,” the US 9th Circuit Court of Appeals ruled.