Is Yelp’s Cry for Help Worth the Hassle?

Supreme Court decision will depend on whether the online behemoth is a distributor, a publisher, or a digital bulletin board

NEW YORK, NY - OCTOBER 26: Employees of the online review site Yelp watch as New York City Mayor Michael Bloomberg speaks at the new East Coast headquarters of the tech company on October 26, 2011 in New York City. The Bloomberg administration has been heralding and working to facilitate the tech sector in New York City in hopes of making New York City a rival to Silicon Valley for start-up companies.

Yelp.

Most people acquainted with me know that I delight in the concept of nominative determinism, the idea that one’s name determines the path that might be taken by the individual. Some have fallen seriously afoul of the rule, like crotch-snapping Wiener and the Amish beard-cutting felon Mullet. In this instance, the aptly named Hassell Law Group, a Californian personal injury law firm, is making waves—not in its usual métier of chasing ambulances, but in the heady world of online freedom of speech. You know this is a train wreck waiting to happen.

Cutting a very long story short, back in January 2013 a disgruntled client, Ava Bird, wrote a bad review on Yelp rather than Twitter (which would have made this case priceless), alleging that Hassell had not communicated properly over a short period of representation. Rather than being seriously surprised that people review business other than restaurants and locksmiths on Yelp, the law firm decided to sue its former client for defamation.

On the facts presented, the firm had a point. Bird’s negative review was simply false. Bird responded to Hassell’s request to remove the comment by doubling down—threatening to update the post and add another negative review from a third party. In February, 2013, a fake identity “JD from Alameda” followed through on the promise and, just for good measure, Bird returned to post again in April 2013.

Bird never showed up to defend the suit, the law firm prevailed by default and obtained judgment for a typically ludicrous Californian damages assessment of $557,918.75. More importantly, an injunction was granted which compelled Yelp to remove any defamatory comment within five days of the court order. Yelp refused to comply on a number of bases, maintaining it is immune from liability for the publication of a review and that, as a nonparty, the only recourse Hassell should have is against Bird and not Yelp.

Accordingly, Yelp stepped up and filed proceedings to set aside the judgment on the grounds that its right to due process was violated, it is immune from liability, relief was granted that Hassel did not request and Bird’s First Amendment rights were violated. Yelp lost. Yelp appealed. Yelp lost again. In sweeps from stage left the California Supreme Court, with a seven-strong unanimous panel voting to hear the case. Also, so their little brother doesn’t have to appear unprotected, undefended and alone, Facebook, Twitter and Microsoft wrote a letter in support of Yelp.

Those among us, who have dealt with cases such as these, will attest to the immense frustration in seeking to have offending or offensive material removed from one an online behemoth. Even if there clearly are defamatory or scurrilous comments from a venomous ex-partner, the online provider refuses to even countenance meddling with the rights of the vulgarian on the disingenuous and rocky footing of freedom of speech. The Yelps of this world demand that the individual bring a lawsuit, often against a pseudonym or a person unknown, and obtain an order of removal at great expense. It should not be so difficult.

The great online platforms enjoy great privilege in being able to tailor which information is disseminated to users, when and in which priority. However, they do not take kindly to being told by a court or by a legislator how that power is to be curtailed or limited in any manner whatsoever. It is an axiom of the law of freedom of speech that defamatory statements are not protected by the First Amendment—so why does Yelp feel it is appropriate to second guess a court finding? Probably because it feels confident that the Californian Supreme Court will lean in its favor.

There will need to be some legal acrobatics to rehabilitate Yelp as, ostensibly, it has not been harmed by the removal order or by the judgment against Bird. Further, as a third party it has no right to seek to set aside a judgment, which included factual findings when Bird, herself, did not even turn up to argue to the contrary.

The central point is whether a platform like Yelp can be compelled to remove material without notice of underlying proceedings and being afforded an opportunity to be heard. The decision will also depend on whether Yelp is deemed to be a distributor or a publisher of information—or simply an online version of a bulletin board.

What’s certain is it is never a good idea for a law firm to be a party litigant on an issue which is so hotly debated. Even among lawyers, as we often joke which category of the profession is the most unpopular, usually a personal injury plaintiff’s law firm takes the award. Now there is a new luminary among us: the Hassell Law Group. One need only see Adrian Z.’s post of 9/19/2016 “Ambulance chaser who will sue to remove negative ratings on YELP. Beware!!”

The best lawyers know when not to litigate.

Robert Garson is Managing Partner of Garson, Ségal, Steinmetz, Fladgate LLP, an intellectual property and international litigation firm in New York. He is also a barrister qualified in England and concentrates on IP and First Amendment matters.