California law professor says Supreme Court should overturn ruling in Yelp case

By Karen Kidd | Oct 9, 2016

SAN FRANCISCO -– A Santa Clara law professor claims the California Supreme Court should reverse an appeals court order for Yelp to remove negative posts about a San Francisco personal injury attorney.

"Consumer review websites are an essential and well-loved part of the modern internet, but the Hassell ruling threatens their very existence," Eric Goldman, professor at Santa Clara University School of Law and director of school’s High Tech Law Institute, told the Northern California Record. "If people who are unhappy with negative reviews can target those reviews, they will deplete the review website's database of negative reviews. A lopsided review database - a database that only contains positive reviews, not negative ones - is useless to consumers."

The California Supreme Court announced last month it would hear the case, Hassell vs Bird.

"I hope the Supreme Court reverses the appellate court," Goldman said. "There are a number of different bases to do so and I don't have a preference for how the Supreme Court gets there."

Goldman said he also has no indication of which way the court will go.

"We might get a better sense after oral argument, when we can hear what questions are on the justices' minds," he said.

The case was initially filed by Dawn Hassell against her former client, Ava Bird, over Bird's negative review about Hassell on Yelp under the online name "Birdzeye B," according to court documents. Other negative posts about Hassell on Yelp also have been attributed to Bird.

The posts followed the decision of Hassell’s law firm to take up and then withdraw from representation of Bird in her August 2012 slip-and-fall case. Hassell claims she represented Bird for 25 days, during which time Bird didn't return the firm’s emails or phone calls and also missed a key appointment. Hassell eventually sent Bird a polite email saying she was withdrawing from the case and advising Bird to find representation elsewhere.

Bird's Yelp posts appeared a few months later and Hassell sued soon after.

Hassel won a judgment from Superior Court in San Francisco court that granted the attorney more than $550,000 in damages and costs, in addition to an injunction that ordered Bird to remove her posts from Yelp.

That injunction prompted a hue and cry of online rights advocates and social media websites that the San Francisco trial judge ordered Yelp, an online review site that is not a named defendant in the case, to remove Bird’s actual and supposed posts.

Much attention is being directed to intermediary liability law which, in the U.S., is the core doctrine of section 230 of the Communications Decency Act and section 512 of the Digital Millennium Copyright Act. Both acts allow online intermediary platforms with user-generated content certain immunities and safe harbors from direct liability for comments. Intermediary liability, along with due process and speech freedoms, could be gutted if an appeals court ruling in Hassell v. Bird is allowed to stand, online rights activists say.

In August, Division Four of California's First District Court of Appeal upheld the lower court ruling. The appellate court opinion held that Yelp could not defend the legitimacy of its user's review," Goldman said. "Instead, Yelp was bound by the lower court's defamation finding in a case Yelp wasn't involved in."

That, Goldman says, flies in the face of the U.S. Constitution's due process clause.

"This violates our country's bedrock principle of due process - that everyone has the right to be notified of proceedings against them and has an opportunity to be heard in the proceeding," Goldman said. "During our country's colonial era, court rulings without due process were so egregious that they provided one of the impetuses for our country's founding. In effect, the appellate court's ruling runs contrary to a centuries-old core value that our country holds dear."

Yelp said it would appeal the appellate court rule to the California Supreme Court and has attracted a great deal of support. Many amicus briefs have been filed with the state's highest court from various advocacy groups, online and off, including by the American Civil Liberties Union of Northern California, Reporters Committee for Freedom of the Press and the R Street Institute, a Washington-based think tank with offices in Sacramento.

Goldman said he agrees with a Wikimedia fellow's letter warning that the Yelp case could have serious consequences' for sites that host user-generated content.

"The ruling provides a roadmap for people to scrub negative content off the internet, even if Section 230 and the First Amendment ordinarily would help protect that content from scrubbing," Goldman said. "While the appellate opinion was in effect, and before the Supreme Court agreed to hear the case, we saw lots of people who were excited about using it to target online content they didn't like. So long as such a rule is in effect, no online content is truly safe from potential scrubbing."

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