We have previously written about the U.S. legal landscape regarding consumers’ rights to post negative reviews of products or services on the internet, including some of the implications of the Consumer Review Fairness Act on these rights. The Consumer Review Fairness Act was passed in December of 2016 in response to some businesses’ efforts to prevent customers from giving honest reviews by signing non-disparagement or similar agreements as a condition to receiving a particular product or service.
This post concerns an issue involving the federal Communications Decency Act of 1996 (the “CDA”) and its relationship to rights and obligations of companies that provide a forum for reviews and ratings of businesses (the “review sites”), the reviewers, and the businesses that are reviewed. In July of this year, the Supreme Court of California issued an opinion, styled Hassell v. Bird, that analyzed the relationship of these entities and provided some guidance and clarity as to legal rights provided by the CDA in this context.The original dispute in the case arose from Ava Bird’s (the defendant) dissatisfaction with legal services provided by Dawn Hassell through her law firm, the Hassell Law Group (the plaintiffs). After communication difficulties and other issues, Hassell notified Bird via e-mail that she was withdrawing representation. Subsequently, Bird posted several reviews on a review site, under various names, criticizing Hassell’s business. In response, Hassell filed a defamation lawsuit under California state law against Bird in the San Francisco superior court, but the review site was not originally named as a defendant in the lawsuit. A default judgment was entered by the superior court in Hassell’s favor, and the court ordered Bird “to remove each and every defamatory review published or caused to be published by her about plaintiffs” from the review site and “from anywhere else they appear on the internet within 5 business days of the date of the court’s order.” The order also stated that the review site itself was ordered to “remove all reviews posted by Ava Bird . . . within 7 business days of the date of the court’s order.”
After the review site, which was not named as a party to the lawsuit, was served with a copy of the default judgment and order, it filed a motion to set aside and vacate the judgment, arguing that the order was deficient in two primary respects: (i) it violated due process under the federal and state Constitutions because it was issued without proper notice and an opportunity to be heard and (ii) it was invalid under Section 230 of the CDA. After the case made its way to the California Supreme Court, the Court held that the order was, in fact, invalid under the CDA and that it must be revised to comply with Section 230 of the CDA. The defamation claim in the suit, which was brought in state court, did not involve any questions of federal law. The California Supreme Court was called upon to analyze federal law only after the review site invoked Section 230 of the CDA in its argument against the validity of the lower court’s order.
The relevant language of Section 230 of the CDA states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The goals of this section of the CDA were to promote the development of the internet and to preserve the competitive free market that exists for the internet.
Plaintiffs’ counsel in the original suit conceded that the purpose of excluding the review site from the complaint was that they predicted the review site could receive immunity under Section 230 of the CDA if it had been named as a defendant. In its analysis, the Supreme Court of California confirmed the suspicions of plaintiffs’ counsel. Thus, the issue before the Court was not whether the review site would have been immune under Section 230, but “whether a different result should obtain because plaintiffs made the tactical decisions” not to name the review site as a defendant. Put another way, the Court considered “whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly.” The Court concluded that, in light of the plain and capacious language of Section 230 of the CDA and the consequences that could result if immunity were denied, the review site is immune under the CDA. The Court’s decision, while clearing the review site of any obligations, leaves intact the plaintiffs’ remedies against Bird.
Section 230 of the CDA, in the spirit of promoting the development of the internet and internet activity, draws an important distinction between providers of interactive computer services, on the one hand, and publishers or speakers of information provided on the service, on the other. While the complexities of the statute are far beyond the narrow scope of this post, the California Supreme Court has at least reiterated the purpose and importance of this law and the protection that it can afford in the context of review site providers.