Hassell v. Bird, 247 Cal.App.4th 1336 (2016), is a case which was appealed to the California Court of Appeals, First District, Division Four. That decision is now pending before the California Supreme Court. The case involves the question whether the trial court acted properly when it ordering a website, Yelp.com--which was not a party in the original lawsuit--to delete negative reviews deemed defamatory by that trial court. Yelp's position is that, inasmuch as it was not a party to the original action, the "removal order" infringes on its due process rights. The Supreme Court of California granted the writ of certiorari on September 21, 2016.
Video Hassell v. Bird
Background
In the summer of 2012, San Francisco attorney Dawn Hassell took on client Ava Bird over an injury claim. Hassell represented Bird for 25 days, and Bird signed an attorney-client fee agreement on August 20. However, Hassell withdrew from Bird's case on September 23, 2012, stating that she was having communication issues with Bird, and that Bird had expressed dissatisfaction with Hassell's work.
Bird published her first review of Hassell's firm on Yelp.com in January 2013, under the name "Birdzeye B. Los Angeles, CA." She rated her experience with Hassell as one out of five stars, claiming that Hassell's firm neglected to contact her insurance company or maintain communication with Bird herself--even though Hassell notified Bird via email about at least two correspondences with Allstate Insurance Company. Upon seeing these reviews, Hassell reached out to Bird, requesting that she remove the "factual inaccuracies and defamatory remarks" from the website. Bird refused.
Another negative one-star review of Hassell's firm appeared in February 2013. This review was written under a different name: "J.D. Alameda, C.A." Although Hassell had never represented a client with the initials J.D., she suspected Bird wrote this review because of its similarities in writing style with the January 2013 review. The review by "J.D." reads as follows:
"Did not like the fact that they charged me their client to make COPIES, send out FAXES, POSTAGE, AND FOR MAKING PHONE CALLS about my case!!! Isn't that your job. That's just ridiculous!!! They Deducted all those expenses out of my settlement."
Hassell filed a complaint against Bird on April 17, 2013, claiming that Bird's negative reviews were defamatory and injurious to Hassell's business reputation. When Bird failed to appear in court, Hassell filed a request to the Court of Appeal for the State of California to have Bird delete her reviews.
On April 29, 2013, Bird--under the "Birdzeye" username--posted another Yelp review in response to her first review in January and addressing Hassell's lawsuit. She claimed that Hassell's legal action aimed to "threaten, bully, intimidate, [and] harass me into removing the review."
Maps Hassell v. Bird
Lower Court Ruling
On January 14, 2014, a default prove-up hearing was held before the Honorable Donald Sullivan. Bird was not present. Ultimately, Hassell was awarded $557,918.75 in general and special damages, but was denied punitive damages.
The court also gave an injunction ordering Ava Bird to remove all defamatory Yelp reviews published about Hassell Law Group, and urging her to refrain from posting online any "written reviews, commentary, or descriptions" of Hassell or Hassell Law Group. Additionally, Yelp.com was ordered to remove all of Bird's reviews within 7 days of the court's order.
The courts cited the Communications Decency Act, 47 U.S.C § 230, which offers protection for the blocking and screening of offensive material. Though it states that websites cannot be held accountable as the publisher or speaker of third party user-posted content, the Court of Appeal claimed that the injunction does not violate section 230, because it did not impose any liability on Yelp as a publisher of third party content, because it only ordered Yelp to remove those specific reviews covered by the injunction.
This judgment was finalized on March 16, 2014. However, since Yelp was not a party to Hassell's original lawsuit against Bird, and therefore was unable to challenge the courts' injunction, Yelp appealed to the Supreme Court of California on May 23, 2014, to set aside the judgment. The website claimed its status as an "aggrieved party," arguing that their right to due process was violated because Hassell had not identified Yelp as a party defendant, and that Bird's First Amendment rights were violated because Hassell had not adequately proved that Bird's comments were defamatory.
The Supreme Court of California agreed to consider the lawsuit on September 21, 2016. The case is currently awaiting review.
Issues Before the Court
The citation of the Communications Decency Act raised eyebrows throughout the Internet community. A petition for review to the Supreme Court of California was filed on July 18, 2016, arguing that while Section 230 of the Communications Decency Act defines the user of a computer service or website as the "publisher or speaker of any information provided by another information content provider," the lower court's ruling was wrongly holding Yelp.com accountable for Bird's speech based on Yelp's online publication of her content.
In one amicus brief supporting Yelp's appeal for review to the Supreme Court of California, Eugene Volokh, a professor at the UCLA School of Law and a contributing writer to The Washington Post, and several other law professors--David Ardia (UNC), Jane Bambauer (Arizona), Dan Burk (UC Irvine), A. Michael Froomkin (Miami), Shubha Ghosh (Syracuse), Eric Goldman (Santa Clara), James Grimmelmann (Cornell), Edward Lee (IIT), Lyrissa Lidsky (Florida), Lisa Ramsey (University of San Diego Law School), Jorge Roig (Charleston), and David Sorkin (John Marshall)--argued that the injunction would set a dangerous precedent for monitoring speech on the internet:
"Yet the decision below offers plaintiffs a roadmap for violating these speakers' rights. Say a business dislikes some comment in a newspaper's online discussion section. The business can then sue the commenter, who might not have the money or expertise to fight the lawsuit. It can get a consent judgment (perhaps by threatening the commenter with the prospect of massive liability) or a default judgment. And it can then get a court to order the newspaper to delete the comment, even though the newspaper had no opportunity to challenge the claim, and may not have even heard about the claim until after the judgment was entered. This is directly analogous to what plaintiff Hassell did in this very case."
A consent judgment is a judgment that agreed upon by the litigants, whereas a default judgment is one that entered when one party fails to appear in court, as occurred when Bird failed to appear at the hearing on January 14, 2004. The amicus brief focuses on the argument of whether Hassell v. Bird would violate Bird's first amendment rights to free speech, as well the issue of whether it can order Yelp, which was not a party in the original lawsuit, to remove her comments. The brief references 1968 Supreme Court case Carroll v. Princess Anne, which held that a state could not prohibit persons from holding a public meeting--even if the topics discussed at the meeting were controversial--without first notifying the persons involved. Following this judgment, the brief argues, the courts cannot order Yelp to remove Bird's comments, because Yelp was never offered an opportunity to challenge whether her comments were defamatory or not.
The case's widespread media attention has already sent a ripple through many online communities. Glassdoor.com, a website similar to Yelp that allows users to anonymously rate and review their employers, claimed in an amicus brief that since Hassell was published, they began receiving more demand letters from users to remove unfavorable reviews. Airbnb, another Internet-based business that depends on third party user-posted reviews, also petitioned the California Supreme Court for review, arguing that the opinion in Hassell would effectively weaken the legal protections granted to websites in the Communications Decency Act, 47 U.S.C. § 230, by holding websites accountable for third party user-posted content.
References
External links
- Text of Hassell v. Bird, 247 Cal.App.4th 1336, is available from: Justia
- Amicus letters for Hassell v. Bird are available at: Santa Clara Law Digital Commons
- Hassell v. Bird, status at the California Supreme Court
Source of the article : Wikipedia
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