A case involving Yelp and a “default judgment” against someone (defendant Bird) who wrote a critical Yelp review about a San Francisco attorney (plaintiff Dawn Hassell) could dramatically impact the online review economy if the decision is allowed to stand. That’s why Google, Facebook, Pinterest, Twitter and numerous others have submitted letters to the California Supreme Court and urged the court to review and overturn the case.
On Yelp, Hassell has mostly positive reviews but unwisely decided to sue Bird for defamation over a negative review (which has now been updated). Bird didn’t defend against the suit, so there was no real hearing on the merits, and Hassell was able to obtain a default judgment and damages. The trial court then issued an injunction compelling Yelp to remove the review. Yelp refused because it had never been notified of the suit or allowed to participate. But the trial court and an appellate court upheld the injunction against Yelp.
While Yelp isn’t liable for the content of reviews on its site, it seeks to protect its members’ right to freely write reviews. Accordingly, it supported a 2014 California law that prevents businesses from writing non-disparagement clauses or similar terms into contracts seeking to penalize or intimidate consumers and preempt negative reviews of those businesses.
There are some relatively obscure legal-procedural issues in this case that are explained in depth by Eric Goldman. But here’s the simplified version:
- The court is exercising jurisdiction and ordering Yelp to remove a review despite the fact that Yelp was not involved in the litigation or allowed to contest the underlying issue of the alleged defamation. Essentially, Yelp says it’s being deprived of due process.
- Equally if not more important is what’s at stake for online free speech, and reviews in particular. Allowing this decision to stand could chill speech and cause ordinary reviewers to be intimidated by business owners and companies unhappy with their online reviews.
The implications could be far-reaching. A letter submitted to the California Supreme Court in support of Yelp’s position by legal scholars outlines this second point and its real-world consequences in very clear terms:
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.
Most individuals are not in a position to hire lawyers and defend the content of their reviews against potential defamation suits. Thus aggressive businesses, as the passage above suggests, could routinely threaten litigation or obtain default judgments to compel removal of reviews they didn’t like. Allowing the decision to remain as a legal precedent could ultimately chill speech. Why would people want to risk inviting lawsuits by writing critical reviews?
Hopefully. the California Supreme Court will take the case and overturn the decision.
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Author: Greg Sterling