VA Court Delivers Blow To Yelp, Free Speech Of Users

A Virginia state court of appeal has ruled that Yelp must disclose the real identities of seven individuals who posted anonymous, critical reviews of an Alexandria, Virginia carpet cleaning business, Hadeed Carpet. Yelp and free speech advocacy groups have decried the decision.

Hadeed said that he didn’t believe that any of the reviews came from actual customers and sued to get Yelp to reveal the identities of the individuals in question. Yelp refused and the court granted Hadeed’s lawyer’s motion to compel.

Yelp appealed and the appellate court affirmed the lower court’s ruling (full opinion embedded below). That decision will be appealed by Yelp to the Virginia state supreme court. If Virginia’s highest court affirms the lower, appellate court decision the case could potentially go up to the US Supreme Court on First Amendment grounds. As a practical matter that would be unlikely.

Currently the Virginia decision has no binding force on the laws of any other state but it’s a disturbing decision and could be used by similarly situated plaintiffs as “persuasive authority” in non-Virginia cases. It contradicts the otherwise uniform state-law consensus that requires a plaintiff to offer solid evidence justifying “piercing the veil” of anonymity.

Yelp argued that the First Amendment places a meaningful evidentiary burden on the plaintiff before the identity of an anonymous speaker can be revealed. The Virginia court sidestepped the First Amendment argument and decided the appeal on the basis of Virginia’s own statute dealing with  the “Identity of persons communicating anonymously over the Internet.”

As a practical matter all the plaintiff was legally required to do to compel disclosure of these user identities was make a number of sworn statements to the court:

• That one or more communications that are or may be tortious or illegal have been made by the anonymous communicator, or that the party requesting the subpoena has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit was filed.
• A copy of the communications that are the subject of the action or subpoena shall be submitted.
• That other reasonable efforts to identify the anonymous communicator have proven fruitless.
• That the identity of the anonymous communicator is important, is centrally needed to advance the claim, relates to a core claim or defense, or is directly and materially relevant to that claim or defense.
• That the individuals or entities to whom the subpoena is addressed are likely to have responsive information

The “reasonable efforts to identify the anonymous communicator” in this case were apparently fulfilled by representations to the court that Hadeed consulted its customer database and believed that these individuals were not actual customers.

The concern of people like Paul Levy, an attorney with Public Citizen who filed a brief on behalf of Yelp, is that allowing plaintiffs to easily unmask anonymous speakers on the internet will “chill” free speech and make critics think twice before speaking out. You can read his discussion of the case and analysis of the relevant law here.

As I indicated, Levy told me this morning that he’s been authorized to appeal the case. He believes that other internet companies may file “friend of the court” briefs with the Virginia Supreme Court because of their interest in protecting the rights of their users.

Interestingly Levy indicated that Angie’s List will reveal user identities to business owners but if they turn around and sue for defamation/libel Angie’s List will blacklist the merchant. There are thus a number of ways to strike a balance between the free speech rights of consumers (here in the form of anonymous reviews) and merchant interests in preventing online false statements about their businesses.

This decision fails to protect the First Amendment rights of Virginia consumers who are turning to sites like Yelp to share their experiences with local businesses. Protecting consumer free speech is paramount at Yelp, which is why we worked with Public Citizen to defend the identities of the reviewers in this case. The Washington Post and Gannett Co. joined our efforts to further protect free speech, as part of a supportive brief submitted by The Reporters Committee for Freedom of the Press. While the Virginia ruling is unfortunate, we plan to appeal and we’re optimistic about the future for protecting free speech online.