By Tyler Quillin

The most important law governing the internet just had its 20^th birthday earlier this year, the Communications Decency Act (CDA). Signed by President Bill Clinton in 1996, the CDA grants online service providers immunity from liability for most illegal activities of their users. What’s more, the CDA not only allows large internet-based companies like Facebook, Amazon, and Yelp! to survive because they don’t have to individually each user’s activity, it also enables a large portion of the freedom of speech the general public enjoys online daily.

Yet, despite 20 years of precedent, the CDA has come under scrutiny. Most notably, a California appellate court issued a ruling that included an order for Yelp!, a nonparty to the case, to take down a defamatory post involving an attorney who sued a former client for posting defamatory comments and reviews on Yelp!. Along with the court order to take down the reviews, the attorney won on a default judgment to the tune of over $500,000.

While Yelp! protested on First Amendment and CDA grounds, the appellate court held that its ruling did not impact the First Amendment because defamatory speech is not protected and the CDA is not affected because the ruling does not hold Yelp! liable.

Specifically, the California appellate court stated that the order demanding Yelp! remove the defamatory claims did not violate the CDA because it assigned no liability. From this author’s perspective, however, ordering a nonparty to a lawsuit to perform a specific action appears to impose responsibility for its users’ activity, as well as gravely jeopardize the First Amendment rights of online service providers. If the only thing someone needs to do in order to circumvent the CDA is to file suit against the user in California, wait for default judgment and request a court order of the online service provider, it appears to be an end-around that might be a readily abused. Granted, the present case does involve unprotected speech.

This ruling will most likely be appealed, but internet service providers are most certainly paying attention. Further degradation of the CDA could lead to a new world for online service providers. If Yelp! or Amazon were forced to maintain liability for the conduct of their users, it would impose significant economic burdens on internal monitoring, which would include jobs, systems, and infrastructure investment on the part of every online service provider. Moreover, as a sure fire means to minimize liability, each provider would most likely cast broad restrictive parameters for user conduct, effectively curbing freedom of speech and expression online.

The bigger question is why the appellate court felt the compulsion to order Yelp! to take down the content, rather than the user. Despite being a default judgment, the court should have exercised its authority over the bad actor, not the third party; let alone the fact that the CDA protects Yelp!. Alternatively, in light of the defendant’s failure to appear, the injured party is likely left without recourse if the court order gets struck down.

The competing view here is that defamatory speech is not protected and therefore Yelp! has no right to refuse a court order to remove it. However, the imposition of authority over a third party, particularly an online service provider, presents a slippery slope that many fear will lead to easier censorship of content and imposed regulatory measures on providers who once fostered open and free speech without fear of liability or legal recourse.

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