A little SF personal injury case threatens 'most important law' on the Internet
latimes.com
latimes.com
(Hint: it's really hard to collect after you get a favorable judgement in small claims court. Small claims court is a waste of time unless you're making a claim against a deep-pocketed multinational corporation.)
This experience taught me that Yelp is useless for anything except five-star reviews. The personal risk of using Yelp to tell the truth about bad service is simply too high.
Well, than Section 230 is simply wrong. It's important not to hold Yelp responsible for what a user wrote on his forum, but I fail to see how it can be damaging for a site to delete some unlawful-ruled content (which it didn't create), apart from the immoral case you named.
If the court thinks that a review is defamatory, they should just order the reviewer to take it down. No need to involve Yelp at all.
Yelp is not required to run a neutral public forum—they can institute whatever policies they want. The problem is when the government forces censorship, not when private companies have their own policies on what they'll host.
Removing content from your own site is not censorship.
It really depends on what motivates the self-censorship.
Actually, in this case, it's the justice, not the government. At it makes a huge difference!
What if the reviewer refuses? No matter the fine, no matter the years in jail they may spend, this will not fulfil the plaintiff's right to have that comment removed.
Wrong as drafted, wrong as interpreted or wrong conceptually?
Laws are what they are - there's really no right or wrong about them.
> I fail to see how it can be damaging for a site to delete some unlawful-ruled content
It's not damaging to remove it. It's damaging to be compelled to remove it. Handing the judiciary this tool to make such orders opens the door to all sorts of down-court mischief.
If the goal is simply the effect in this one case, then order the poster to take it down and Section 230 stands unmolested. But that's not the goal, or it would be done that way already. The goal (for some parties) is handing the tool-to-compel to the judiciary.
Being immune from liability for what users post is not the same being able to ignore a court order.
this is orders of magnitude less significant than big studios removing random youtube videos from the air, accusing them of copyright infringement, even ones that have no background music, just because it says bad things about something the studio worked on.
That could lead to a significant amount of prior restraint which would have the effect of restricting online speech in places where it is most useful. That would be much further-reaching than anything YouTube does.
The article says that Yelp has been ordered by a judge to remove a few posts that have been found libelous. Yelp is refusing.
Nowhere does it say that Yelp was "held accountable" for anything.
It's also not a case of prior restraint since it happened after a trial and a verdict.
The sky is not falling.
"Glassdoor.com, which posts anonymous employee comments about companies to inform job-seekers about working conditions, says the ruling began to show up in letters demanding the removal of comments and disclosure of users’ identities almost immediately after it was handed down."
EDIT: nevermind, the response was in the wrong part of the thread.
Yelp was not a party to the case.
> It's also not a case of prior restraint since it happened after a trial and a verdict.
Yelp was ordered to do something, but Yelp did not receive any opportunity for a trial.
Someone posts my original work to Youtube. I sue the individual, and the court agrees that posting was illegal and orders the plaintiff to remove it. The plaintiff says that they no longer have the password. The court sends an order to Youtube saying that the should take it down. Now, there's a special procedure for this under the DMCA if the claim is copyright infringement, but are you saying that Youtube should be able to ignore the court order?
An identity thief applies for credit cards in my name. They are convicted, and the court orders the bank to cancel the credit card account that was fraudulently obtained. The bank is not a named party. Would you say that the bank should keep account until I sue them separately?
A children's toy is badly constructed and dangerous. The manufacturer is sued by an aggrieved parent. A court makes an award to the parent, and orders that sales of the toy be halted. All resellers receive a court order telling them to stop selling the product. Should they comply?
I'm not seeing the hazard in having companies obey court orders even if they are not named parties. Presumably there is a process where they can refuse and get a court hearing about the validity of the order? Or is the issue that there is no such process?
Edit:
I'm reading Volokh's amicus now (https://assets.documentcloud.org/documents/3038335/Hassell-v...), which makes it clearer that the distinction is something like "because speech is different". I don't really understand his argument, though, or why he keeps using "allegedly libelous" to describe something a court has found to be libelous.
I think it's because he's arguing that the collection of comments (or reviews) published by Yelp is contextually different than the individual comment, and that one may be libelous and the other not. While there is some truth to this, I think there is a difference between a conscious compilation, and a "bulletin board" type system where posters can add whatever they wish without review.
I don't have a strong opinion here. I presumed I was missing some of the backstory, and was asking Josh because I respect his opinion on technical matters and wondered what made him seem so certain that this was an important principle to preserve.
As I look deeper, I think the key the "must uphold" side is the belief that choosing to quote another is an independent speech act, and needs independent consideration. Unlike copyright or dangerous products, libel is considered a purely civil affair, and thus does not have the same remedies that those do. My doubt is whether an "aggregator" site without independent editorial voice should be entitled to this protection.
A party to a trial (such as a named defendant) is afforded a variety of rights. Among many others, they receive legal notice of the case with sufficient time to prepare, can face their accuser in court, can defend themselves, provide testimony, file legal documents and motions, and many other things an interested party might wish to do. A third party doesn't automatically get those rights.
> Presumably there is a process where they can refuse and get a court hearing about the validity of the order? Or is the issue that there is no such process?
The issue is the default assumption that they must comply, rather than the usual innocent-until-proven-guilt process (or, in a civil case, preponderance-of-the-evidence). Consider a third party who received no legal notice of the existence of the case, has no opportunity to prepare or offer any defense, who effectively has the case decided in absentia, and who first hears about the case when they get a court order requiring them to do something. That doesn't seem reasonable.
(As with any generalization like this, some exceptions might apply. But that's the kind of thing court procedures like preliminary injunctions exist for: "something irreparable will happen if they don't stop now, before the case concludes". So even then, I think it makes sense for the third party to be a party to the case and for them to have the opportunity to challenge the preliminary injunction just as any other defendant could.)
If they want to overturn that court order, they can potentially do so, but the default assumption is that they must immediately comply with it or face legal penalties themselves. And depending on the nature of the court order, often they must comply while pursuing their own legal action, rather than having the opportunity to make a case in advance.
All that said, a third party may wish to voluntarily cooperate, in a case where they agree with the matter (or don't disagree and don't want the fight). And in some cases, they may have individual liability if they don't; for instance, a reseller of a recalled toy may themselves face liability if they don't cooperate with the recall, while they may have some legal protection or defense if they do cooperate.
YouTube silences you without a court order or anything.
> Hassell sued Bird for libel and won a judgment for more than $550,000 in damages and costs, as well as an injunction ordering Bird to remove the ostensibly defamatory material from Yelp
This is fucking nuts. How can someone be sued for $550K for writing a bad yelp review.
Can someone please explain why the law allows for ridiculous damages like this.
If this is allowed, I would wipe my online identity and live in Tor permanently.
I once gave a doctor a bad Yelp review and was very careful to avoid stating anything that could be claimed as libel - I only stated very specific and accurate facts and my opinions of them. They still seemed to try to come after me for libel (but quickly gave up).
Interestingly, I had even used a throwaway email address and Yelp account. But, they still tracked me down. I'm guessing that maybe they had Yelp pull the server logs, but I don't really know.
My Yelp review was then hidden. And, the Doctor responded directly to my review, calling me out by name and essentially calling me a liar (I wasn't). I certainly didn't want to get messed up with a legal case, so I ignored it. However, it was a very startling experience.
That seems likely it would violate HIPAA in some way...
Now, the physician resorts to describing what was physically wrong with the patient online in a rebuttal. For instance, "Susan--you seemed happy when we removed those ugly brown spots I removed?"
I've been suprised she hasen't been accused of voilating HIPPA either.
I don't use Yelp. I honestly try to stay away from most doctors--just don't like most of them. Out of all the professions, MD's seem to dislike Yelp the most. Gone are the days where they can treat patients like dirt, and the patient has no recourse--other than dying. It's too bad that physicians are so arrogant. I don't get it. The last twenty years have exposed the profession to be so much of an art?
(I do try to recognize the Doctor who is taking on hard cases, and give that Doctor a large benefit of the doubt. For instance, the medi-cal Doctor gets a get out of jail free card, but most of the negative reviews are for the doctors who are charging $350.00 hr, in good areas of the county?)
Doctors dislike review sites in general. The reason is that, in the age of the Internet, patients think they know everything. A lot of them go to the doctor and demand a prescription for a certain drug because they read on the Internet that it would cure their condition. When the doctor refuses (for obvious reasons) the patient gives them a 1-star review.
That's just one example of how patients can be real assholes and why doctors don't like review sites.
Providing care is finding the delicate balance among sciences and arts, inevitably there are ambiguous tests, marginally effective treatments, rare/impossible to predict side-effects and frequent backtracking to try yet another option. Some patients will misconstrue this less than ideal algorithm as mistreatment even when informed it represents the imperfect state of the art.
Certain perfectionistic individuals make unrealistic demands of care providers and may complain bitterly about less than optimum outcomes. Most patients aren't like that, but a few are. The notion that patients are "treated like dirt" these days is an unreasonably broad assertion that shouldn't be accepted without substantial evidence.
No doubt there are occasional providers who are less than competent, notably unempathetic, mean-spirited, etc. There are ways to complain if it's warranted, medical societies and licensing bodies take these complaints very seriously. But by all means such instances deserve fair and dispassionate investigation.
It may be hard to tell which Yelp "reviews" are authentic, and which may be authored by family members or friends just to rack up bad opinion about the doctor, or against any other service for that matter.
OTOH it is unethical for a doctor to reveal anything about the patient without specific permission. I suppose write a review of the doctor's work is a tacit permission to respond, but it is always the patient's right to reveal info, but the doctor is limited in what can be said.
That may be a reason health care providers are skittish about Yelp and the like. Because of confidentiality rules, ethical practitioners can't defend themselves against exaggerated, erroneous or even false claims made in a public listing. Anyone taking Yelp "reviews" seriously is probably accepting bad advice especially when it comes to seeking services as complex and nuanced as medical care.
The arena of "reviews" by disgruntled customers seems like it's just starting to be explored by the courts. Physicians' organizations and licensing boards haven't yet addressed the questions about responding to unfair or inaccurate statements about physician or health care services. I imagine those discussions will indeed be lively.
In my particular case, the doctor was one of the 'top N in large metro area' doctors. After the visit, I realized that their placement in those rankings probably had more to do with how they spent money toward advertising and marketing than providing the best possible health care.
Without public reviews, how else could a patient be able to anticipate the quality of care? Rely on boards of medicine? You have to understand that to many, the standards of those boards seems to have fallen into irrelevancy. Plus, they're not exactly impartial or unbiased anyway.
What is a "for-profit" business in this domain? In the classic fee-for-service model, a patient asks for a service from a physician and pays for it. The physician needs the money to keep the practice running and to buy food and shelter. You could call it a "for-profit" business like a plumber and other craftsmen, that's fair enough, but for doctors money isn't the primary motive, they are only earning a living.
One difference though, physicians practice under far stricter codes of ethics, and duty-bound to hold the relationship confidential. Furthermore, the physicians are sworn to place the interests of patients above financial gain when crucial to patients' life and limb. Most physicians strive to adhere to ethical standards.
Of course not every physician lives up to the commitments made, some are greedy, and do look at practicing medicine as a means to accumulate wealth. Fraudulent billing is one path, exaggerated claims, huge marketing efforts and so on are also ways to get there. But these actions aren't common.
And there is incompetence, which differs from the normal ambiguities of diagnosis or dead-ends of treatments that don't work. No disagreement, there can be reasons to complain, but not all complaints reflect physician error or misconduct, or actual adversity to the patient.
However, health care is a team effort. There are poor patients as well as poor doctors. Asymmetrically, patients can openly write anything about a doctor justified or not. But unlike services like AirBnB or EBay, doctors can't respond in an open forum to set the record straight.
Remember, patients can also grossly misbehave. What constraints are in place to prevent it, or from shifting blame for poor outcomes to the practitioner who was consulted?
Having been involved in "quality assurance" of patient care including financial misbehavior, I can positively assert complaints are taken seriously. If patients submit complaints to medical societies, hospitals, licensing boards, there's a very high probability the complaint will be investigated. Believe me, such investigations are despised by physicians much more that Yelp reviews.
BTW in the state in which I practice, proceeds of the medical board are public documents. You can find out about actions taken against physicians and physician assistants quite easily. Much more interesting and informative than Yelp reviews.
This isn't an assault on liberty, rather, it's a silent knife in the kidney. This is the kind of ruling that allows liberty to die with a whimper, drowned in a sea of procedure and 'sure, but maybe if's, with no regard for long-term consequence (or any of the theory of, well, law.)
That's not reasonable. If the person for whatever reason doesn't show up, but it is a company vs a person lawsuit, then granting everything doesn't make any sense. There could be various reasons why the person didn't show up.
Is this because civil court dont have a police force that investigates and arrests you?
If you manage to stay under the radar, you may eventually escape liability by exceeding the time-limits under a Statute of Limitations, but it's usually a risky and lengthy endeavor.
But what do you know?
Giving them a chance means notifying them in multiple ways, or delaying the process until it can be verified that they have been notified.
You can't just some random house or even a former residence. The papers actually have to be given to the defendant, right?
At least for civil cases in some states, the plaintiff only needs to make a "good faith" attempt at serving the defendant (specific requirements for this may be enumerated). After a certain amount of time has passed without a reply, a trial date can be set and the case can proceed.
https://en.wikipedia.org/wiki/English_rule_%28attorney%27s_f...
This is unlikely to change as the trial lawyers have enormous power and sway over at least one of the 2 major political parties. Pretty much any politician who has attempted to change this has been destroyed.
It seems the parent comment was primarily shocked by the size of the damages, which are not affected by the rule (or would if anything be larger with the English rule, if you want to include legal fees under damages).
That doesn't sound like it follows from the English rule.
This.
I've first hand witnessed several people being rejected/blocked by HR from manager positions in Fortune 100 corporations due to various internet findings.
Examples: - pictures on facebook showing the applicant vomiting due to drinking too much, noone wants to risk hiring an alcoholic - search result connecting the applicant to a cult, - search result showing applicant posting negative opinions about immigration - search result showing applicant being open with bdsm sex related activities
The applicants were not given the chance to discuss these issues with HR, they were just silently rejected. I think this is very common as it exposes the company to risk if there is a discussion and the candidate is later rejected. If there is no discussion, there is no proof. When hiring for any position which is customer facing, corporate HR is incredibly sensitive how the applicant is displayed on the internet.
Posting anything on the internet about anyone is extremely powerful today and it doesn't matter if it is true or not since you will not have any way to defend yourself.
She goes unnamed and unscathed. Thanks to Google, he will never work in education again.
If it happened to him it could happen to you.
UK: I suspect the legal situation is a bit more complex here (it usually is), so perhaps the title should be 'most important law in the US'?
It's simpler in the UK and EU at the moment.
You want to look at the EU e-commerce directive, paragraph 43 and the definition of "mere conduit" in the appendix: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELE...
In essence, (and directly from the law):
"Mere conduit"
1. Where an information society service is provided that consists of the transmission
in a communication network of information provided by a recipient of the service, or the
provision of access to a communication network, Member States shall ensure that the
service provider is not liable
for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.Yes, all the time.
If Yelp was a pure intermediary, perhaps they would have a case, but they are not and neither are any of the other companies mentioned. All these companies decide what they want to keep on their sites and what they want to remove. All of them can and do delete information and block accounts of people that break their rules.
They should not be able to hide behind Section 230 by keeping information on their site that they know to be libellous or illegal and they should be prosecuted for doing so.
IANAL, but that's not how I understand that Section 230 works. If it did work that way, I think the law would be horribly broken. No site hosting UGC can be completely un-moderated, and therefore by your reasoning, no site with UGC content could benefit from Section 230.
Luckily, sites can exercise some measure of editorial control of their UGC while at the same time still benefiting from Section 230 protections. As the OP states, the law is often regarded as the legal backbone of the internet, and its protections for publishers should not be easily dismissed.
What Yelp is demanding here is to be a named defendant if they are to be bound by the court decision, which is already the standard for newspapers. I think it's fair to expect to have a seat at the table if the courts are going to be ordering you to modify your site. Particularly because in this case there appear to be questions-of-fact regarding which reviews were even written by the defendant.
Yelp would either have to say that Bird made the comments, and absolve themselves of responsibility, or instead become responsible. Otherwise it would seem that any anonymous comment could be used to skip libel penalties. Surely there has to be precedent for this in the past few years.
Am I missing something here?
to be clear here: a federal law cannot be struck down by a state court.
Would the EU block Facebook as a response? I doubt that will be a popular move.
While the EU obviously wouldn't block access to Facebook, I doubt that the cost of complying with regulation would be larger than shutting down their subsidiary. Think ad revenue, declining user base due to bad PR, and I don't think this move would go over well with their investors.
No, a judge had whatsapp blocked in Brazil and it resulted in a backlash from citizens.
And then you have tobacco companies suing countries for anti-smoking laws, because fuck it, why not.
And then you have corporations playing states and countries off each other by getting them to compete over jobs with tax breaks.
So no, nation states do not really have the upper hand over corporations. It's the other way around these days.
Which only works in certain parts of the world - it's not like Uber is legal in Germany or that they made a lot of friends in Sweden lately.
It's not like companies need to get from zero to world domination in a single step.
If the government is no longer representing the will of the people in a democracy, isn't change the point?
In a democracy the government's job is to do what the people want. Claiming it's the job of the government to prevent people from making decisions is antithetical to that.
[1] having a german localization is a strong indicator in that case.
The world has more than one legal system.