4 ms·

Yelp benefits from the safe harbour provisions by not being the originator of the comments. Being legally ordered to remove a comment in no way threatens that p

Yelp benefits from the safe harbour provisions by not being the originator of the comments. Being legally ordered to remove a comment in no way threatens that provision.

JoshTriplett 10y ago
A trial to which they're not a named party still shouldn't be able to issue them such a court order.
- nkurz 10y ago
  You seem to have thought more about these issues than I have. I don't see why it should matter if Yelp is a named party. Is it because this is civil and not criminal? Let me try a few parallels, and perhaps you can point out the flaws. 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-Bird-Internet-Law-Scholars-Letter-1.pdf 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.
  - ryandrake 10y ago
    Would you feel the same way if two of your neighbors were having a dispute in court about one neighbor's kid trespassing on the other neighbor's property, and the judge decided to order you to pay $2000 because the kid is running through your yard to do it?
    - nkurz 10y ago
      No, but I think that's an irrelevant strawman. Unless maybe you were issued a fine for a violation that was brought to light in the other trial, but I still struggle to see the relevance. Maybe you could flesh out your example a bit with reference to Volokh's amicus (which I think is better reading than the LA Times article) or some of the precedents it cites? 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.
  - JoshTriplett 10y ago
    First of all, I don't think it's reasonable to distinguish here between a "company" and any other third party; the third party could just as easily be an individual. Consider, for instance, a forum or site run by an individual. 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.

Yelp benefits from the safe harbour provisions by not being the originator of the comments. Being legally ordered to remove a comment in no way threatens that provision.

JoshTriplett 10y ago

A trial to which they're not a named party still shouldn't be able to issue them such a court order.

nkurz 10y ago
You seem to have thought more about these issues than I have. I don't see why it should matter if Yelp is a named party. Is it because this is civil and not criminal? Let me try a few parallels, and perhaps you can point out the flaws. 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-Bird-Internet-Law-Scholars-Letter-1.pdf 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.
- ryandrake 10y ago
  Would you feel the same way if two of your neighbors were having a dispute in court about one neighbor's kid trespassing on the other neighbor's property, and the judge decided to order you to pay $2000 because the kid is running through your yard to do it?
  - nkurz 10y ago
    No, but I think that's an irrelevant strawman. Unless maybe you were issued a fine for a violation that was brought to light in the other trial, but I still struggle to see the relevance. Maybe you could flesh out your example a bit with reference to Volokh's amicus (which I think is better reading than the LA Times article) or some of the precedents it cites? 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.
- JoshTriplett 10y ago
  First of all, I don't think it's reasonable to distinguish here between a "company" and any other third party; the third party could just as easily be an individual. Consider, for instance, a forum or site run by an individual. 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.