SLO Bar Bulletin

Our San Luis Obispo Paralegal, Deborah White, was honored last year when the Director of the Cal Poly Paralegal Studies Program asked if she would contribute articles for the local Bar. The article below is riveting and interesting. Congratulations Deborah White!

In an interesting look at how far social media is reaching into our lives, the California Supreme Court will review an order directing Yelp, Inc. to remove negative posts made against a San Francisco law firm from its social media opinion based web-site.  (Hassell v. Bird (2016) 247 Cal.App.4th 1336 (“Hassell”), review granted 2016 Cal. LEXIS 7914 (9/21/16).)

A personal injury attorney and her law firm, the Hassel Law Group, alleged that an uncooperative client whom she advised she would no longer represent, published false and defamatory statements on Yelp, the well-known electronic publisher of crowd-sourced business reviews.  The law firm sued the former client for libel and the trial court awarded damages on a default judgment prove up, in addition to an injunction ordering the client to remove the defamatory material.  The order was upheld by the First Appellate District over Yelp’s objection.

Although not a party to the initial lawsuit, Yelp’s legal team argued on appeal that the removal order violated due process, constituted a prior restraint of free speech and violated the Communications Decency Act of 1996 (the “CDA”), found at 47 United States Code section 230.  Seen by some to be a landmark piece of Internet legislation, the CDA provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.

The Court of Appeal found the statements made by the former client about the law firm to be false and defamatory and therefore not protected by the First Amendment. It also held that, as a distributor of third party speech, Yelp did not have an unqualified due process right to notice and a hearing before the distribution of defamatory speech could be enjoined.  Finally, the Court held that the removal order did not violate the CDA because it did not impose any liability on Yelp. The law firm filed the complaint against the former client who allegedly wrote the defamatory statements, not Yelp; obtained a default judgment against the former client, not Yelp; and was awarded damages and injunctive relief against the former client, not Yelp. (Id. at p. 1362.)

But, in another incident this year, Yelp was criticized itself for talking too much on social media.  Earlier this year when a single mother and former sales employee at Yelp posted that she was fired for needing emergency medical leave, a Yelp representative responded on Twitter.  Officials from Yelp initially responded that they employ thousands of people, provide training, benefits and guidance with performance issues. However, they didn’t stop there. Referring to the specific employee by name, they posted the number of absences, accommodation attempts, and other performance matters.  Like all publicly disseminated statements, statements on social media must be factual and made without malice to avoid being considered defamatory.

Even the recent presidential election has opened a Pandora’s box of issues surrounding the use of social media and its impact on our daily lives.  We’ve witnessed that “news” can be invented with no fact checking prior to its rapid dissemination.  Rumors are rampant and consumers of social media are expected to know how to separate fact from fiction and legal from libel.

As the results of the fluid and evolving landscape surrounding the use of social media are being played out in the political arena, we might assist by providing education on the fundamentals of First Amendment principles of protected and unprotected speech announced in such cases as Schenck v. United States, 249 U.S. 47 (1919) where Justice Oliver Wendell Holmes set forth the “clear and present danger” test. There, the Supreme Court affirmed convictions of the defendants for conspiring in an attempt to incite subordination and interfere with recruitment in the armed forces during wartime by mailing leaflets that compared the military with involuntary servitude providing a clear and present danger to the United States military; Hustler Magazine, Inc. v. Jerry Falwell, 485 U.S. 46, wherein the Supreme Court held that a public figure had to show actual malice in order to recover for intentional infliction of emotional distress as the result of a parody in a magazine; and where broadcasting limits were tested in FCC v. Pacifica Foundation, 438 U.S. 726, involving George Carlin’s “Seven Filthy Words” monologue, where the Supreme Court concluded that broadcast materials have limited First Amendment protection because of the uniquely pervasive presence that radio and television (and now social media) occupy in the lives of people, and the unique ability of children to access them.[1]

As it stands now, the CDA has been construed broadly to immunize “providers of interactive computer services against liability arising from content created by third parties. (citations omitted.)” Hassell v. Bird, supra, 247 Cal.App.4th at p. 1361. But the California Supreme Court’s treatment of the CDA in the case Hassell v. Bird (2016), and in other cases coming up around the country involving the rapid dissemination of false information posted by third parties, will likely test the limits of social media responsibility.

 

Ellen Sheffer, Independent Paralegal, Director of Paralegal Studies, Cal Poly SLO (Ret.)

Deborah White, Litigation Paralegal, Harris Personal Injury Lawyers, Inc.

November 2016

[1] Some of the information found in this article was provided by American Library Association ”Notable First Amendment Court Cases” reprinted and distributed for non-commercial and educational purposes only and not for resale.

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