By Julius Young
The California Supreme Court has rendered a 4-3 decision in Hassell v. Bird (see link to the decision at the bottom of this post). This case may be of interest to attorneys, doctors, insurance brokers and other providers who service the California workers’ compensation system.
We live in a mobile, internet world. Increasingly it seems that individuals rely on online information rather than traditional referral sources when they select providers. And many are not hesitant to provide “reviews”, some of which can be impulsive and scathing.
Think of some of the sites. Yelp, Avvo, Healthgrades, RateMDs, Vitals.com are but a few examples.
In many instances the quality of the reviews are suspect. It’s often difficult to tell what motivates the reviewer and the true context of their comment about professional services.
We live in an internet world too often filled with bots, fake posts, and trolls. Disturbed or unhappy clients and patients can stir up a great deal of controversy.
The Hassell v. Bird is a cautionary tale.
In the Hassell v. Bird case Ms. Bird used Yelp. Bird hired Hassell, a San Francisco based personal injury attorney, to handle a personal injury case. The relationship did not last long, and realizing that Bird was unhappy, Hassell withdrew about 3 months later. Several months later a scathing one star review was posted on Yelp under a made-up user name, and then about a month later another scathing review under a different fake name. Hassell had communicated to Bird, noting claimed inaccuracies and demanding the review be taken down or factually revised. Bird refused to take the review down or alter it.
Hassell then sued Bird. Hassell’s lawsuit claimed that Bird’s reviews were libelous and that in posting them Bird had intentionally inflicted emotional distress. But Hassell did not sue Yelp. Bird did not respond to the lawsuit but did update the prior Yelp review by making additional negative comments against Hassell, claiming that Hassell was bullying.
After hearing testimony from Hassell on the underlying facts, the Superior Court issued a judgment for Hassell in $557K. Because Bird did not appear in the lawsuit, she never testified as to her side of the story. The trial court ordered Bird to remove all defamatory reviews from Yelp and elsewhere on the internet. Moreover, Yelp (which was not a party to the litigation at the time) was ordered to remove all reviews posted by Bird under various user names.
Learning of this, Yelp refused to remove the reviews at issue. Yelp followed with a motion to set aside and vacate the judgment. The Superior Court denied this, finding a “factual basis to support Hassell’s contention that Yelp is aiding and abetting Bird’s violation of the injunction.” Yelp appealed and lost at the California Court of Appeal in 2016.
It is not clear whether and if Yelp ever did anything that could be remotely seen as effectively policing its own platform, even after it became aware of a judicial finding that the review was defamatory. However, a lawyer for Yelp, Aaron Schur, was quoted in the San Francisco Chronicle as saying that Yelp had examined the challenged reviews and found no evidence that they were libelous. That contrasts with the finding of the trial court but then again Ms. Bird did not testify and Yelp was not involved at the trial stage.
But the California Supreme Court has now sided with Yelp in a decision authored by Chief Justice Cantil-Sakauye.
Yelp largely wins due to the court’s interpretation of a federal statute, the Communications Decency Act of 1996, found at 47 U.S.C. Section 230. That section provides broad immunity to providers of interactive computer devices and provides that they shall not be treated as the publisher or speaker of information provided by another information content provider. In the view,of the majority, Hassell’s strategy “could subvert a statutory scheme intended to promote online discourse and industry self-regulation.”
Spirited dissents authored by Justice Liu and Justice Cuellar are dismissed by the majority. Yelp is not required to remove the challenged reviews or to abide by the trial court order.
The Supreme Court throws a sop to Hassell, noting that if Bird refuses to exert reasonable efforts to secure removal of the posts it could be a civil contempt under CCP Section 1209(a)(5), “the consequences of which can include imprisonment.”
That may be a difficult, expensive and unwieldy remedy. As Hassell’s lawyer stated in a quote to the Chronicle, the ruling opens the door for persons “to make false statements with the hope that they will live in perpetuity online.”
In the past year we have seen the failure of Facebook to police content on its platform. The Yelp case further demonstrates that the internet is like the wild west. Tech companies adopt business models that can replicate false and misleading information.
It’s a situation that will undoubtedly ensnare providers in the comp system.
The decision in Hassell v. Bird can be found here:
Here’s a link to an interesting article that references several studies on online doctor review sites:
Check back next week for my comments on a recent WCIRB study of 2017 workers’ comp results.
© Copyright 2018 Julius Young. All rights reserved. Reprinted with permission.