Even the worst Yelp review can now live forever

The California Supreme Court ruled by a 4-3 vote in San Francisco Monday that Yelp Inc. can’t be forced to take down a review that was found to be defamatory by a lower court.

The unfavorable review of a San Francisco lawyer, Dawn Hassell, was posted on Yelp in 2013 by a former client, Ava Bird, who briefly hired Hassell in a personal injury case.

The review was found to be defamatory by a San Francisco Superior Court judge after Hassell sued Bird and Bird failed to show up in court. Bird later alleged she wasn’t served with the lawsuit.

Hassell intentionally didn’t name San Francisco-based Yelp as a defendant in the defamation lawsuit, but the trial judge ordered both Bird and Yelp to remove two unfavorable reviews by Bird as well as a third unfavorable comment that Bird claimed she didn’t write.

Yelp later participated in the case at the appeal stage.

In Monday’s ruling, the state high court majority said Yelp was protected by the federal Communications Decency Act. The law says internet service providers and users should not be considered speakers or publishers of the content posted on their sites by others.

Chief Justice Tani Cantil-Sakauye wrote:

“Yelp is entitled to immunity under the statute.”

She said that by deliberately not naming Yelp as a defendant, Hassell and her law firm had attempted an “end run” around the law, but said they could not “accomplish indirectly what Congress has clearly forbidden them to achieve directly.”

Two other justices joined Cantil-Sakauye in her opinion. In a concurrence, Justice Leondra Kruger said she agreed Yelp was protected by the federal law, but said that on an even more fundamental level, Yelp was denied constitutional due process by not having a chance to participate at the trial court level.

The ruling also drew two different dissents. In one dissent, Justice Goodwin Liu said the trial court ruling should be upheld because it didn’t impose any financial liability on Yelp, but merely ordered the online review company to remove posts that were found by the lower court to be defamatory.

In the second dissent, Justice Mariano-Florentino Cuellar and a colleague said Yelp could be subject to an order to remove the posts, but only if it was found to have aided, abetted or colluded with Bird. Cuellar said the case should be sent back to the trial court to decide that issue.

Yelp Deputy General Counsel Aaron Schur said in a blog post:

“With this decision, online publishers in California can be assured that they cannot be lawfully forced to remove third-party speech through enterprising abuses of the legal system, and those of us that use such platforms to express ourselves cannot be easily silenced through such tactics either.”

The court majority noted that Hassell can still try to enforce the removal order against Bird and can seek to have her found in civil contempt of court if she refuses to take down the review.

A lawyer for Hassell could not be reached for comment.