Commentary

Silicon Valley Sides With Yelp In Battle Over Takedown Order

Silicon Valley companies and digital rights groups are lining up behind Yelp in a fight over whether it can be forced to take down a bad review.

The battle dates to 2013, when California attorney Dawn Hassell sued a former client over a negative Yelp critique. The ex-client didn't come to court to answer the lawsuit, and Hassell was awarded a default judgment of more than $500,000.

The trial judge also ordered the former client to remove her review and, in a surprising move, directed Yelp to take down the review -- even though Yelp had never even been notified by Hassell about the case.

After Yelp learned about the case, it intervened and asked the judge to vacate the injunction. The company said it should have been able to appear in court and defend its right to display the review.

Trial judge rejected Yelp's argument, as did an appellate court.

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Yelp is now asking the California Supreme Court to vacate the takedown order. Among other arguments, Yelp says the earlier rulings effectively teach other businesses how to do an end-run around free speech laws that protect the company's right to host bad reviews. Yelp says in its legal papers that other disgruntled review subjects could "follow Hassell's example: intentionally sue the commenter alone ... and then after a default judgment present the injunction to the website publisher as an unassailable fait accompli."

Hassell counters that Yelp has no right to "distribute defamatory speech."

"To the extent that Yelp believes that it has a right to perpetuate defamation because it has a separate First Amendment right to distribute speech, it is entirely mistaken," attorneys for Hassell write in a brief filed with the California Supreme Court in January. "There is no constitutional purpose in protecting the publication of proven lies."

This week, a host of groups including civil rights organizations like the ACLU and Electronic Frontier Foundation, and Web organizations like the Internet Association -- which represents Google, Facebook, Amazon, eBay and other tech companies -- submitted papers backing Yelp.

The Internet Association, along with the Consumer Technology Association, argue in a proposed friend-of-the-court brief that the earlier rulings "have caused grave risks to the public, to online service and technology providers, and to the societal and commercial benefits that flow from the Internet."

"If the results below were to prevail, a vast new avenue of litigation abuse and vast new opportunities to suppress First Amendment rights would open up," the groups add.

"Plaintiffs could surprise online services and technology providers with 'bank-shot injunctions,'" the organizations argue. "Targets of injunctions would have no effective protection or recourse. Instead they would learn about judicial orders at the same moment they face threats of contempt."

The ACLU, Electronic Frontier Foundation and other digital rights groups argue in a separate proposed friend-of-the-court brief that the injunction violates Yelp's rights to due process of law and free speech.

The groups add that the earlier opinion "opens the Internet to a new wave of litigation that threatens its continued existence."

Other companies and organizations seeking to weigh in with friend-of-the-court briefs, include Glassdoor, TripAdvisor, Google, Airbnb, Facebook, Twitter, Public Citizen, American Society of News Editors, BuzzFeed, and The Reporters Committee for Freedom of the Press.

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