VA Court Delivers Blow To Yelp, Free Speech Of Users

yelp-iconA 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 profile

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.

Postscript: Here’s Yelp’s official reaction to the decision:
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.

Related Topics: Channel: Industry | Legal | Legal: General | Legal: Privacy | Top News | Yelp

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About The Author: is a Contributing Editor at Search Engine Land. He writes a personal blog Screenwerk, about SoLoMo issues and connecting the dots between online and offline. He also posts at Internet2Go, which is focused on the mobile Internet. Follow him @gsterling.

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  • david oremland

    Greg: I believe it is helpful to counter the impact of anonymous reviews that for so many reasons, can be used to tank a business. A slew of bad reviews on yelp can do that. That is also chilling. A person can’t yell fire in a crowded theater is the example often used that begins to define limits on free speech.

    Speech!!! There weren’t reviews when the constitution was written let alone anonymous reviews.

    Speech!!! There wasn’t PAID political advertising by now anonymous billionaire sources when the constitution was written.

    One needs to test hard the protections of rights when modern mechanisms can be used for such destructive and sometimes incredibly malicious purposes.

    I hope they surface the commentators. That would be tremendously interesting.

  • http://wtff.com/ JustConsumer

    Hm … kind of the strange case.

    I’m not sure what is the problem in this case to uncover reviewers.
    There is no doubt, that reviewers shouldn’t be uncovered per request of the business reviewed. But what is the problem when the court ruled ?

    It’s highly possible, that this is not about the Anonymity, but about YELP’s business model. If it appears, that these negative reviews are false, then YELP has to create kind of the system to keep those who write negative reviews under control. I’m not sure, if this is possible for YELP. The whole business model can be seriously damaged.

  • Guest

    That’s all well and good, but I’ve had my life threatened by a business owner when I used my real name and left a review. “I know where you live” and all that. I feel much more comfortable telling the truth anonymously, where the crazies can hear my feedback but not bring crazy to my house.

  • Tian_Mian

    Before a negative review gets posted the business owner should get the possibility to exchange some private messages with the reviewer.

  • Chris Koszo

    @gregsterling After years of working with many small business owners, I have one thing to say: Yelp can be a real nightmare! If you don’t currently have a Yelp profile, don’t even THINK OF creating one. There’s no going back, and the risk is too great!

    Want to know what really grinds my gears though? Yelp does in fact use a different algorithm on the “hidden reviews” when you’re a paying advertiser! Here’s how it works in most cases:

    1) A small business owner has a great little shop with good service, and they have a nice little amount of good and very good reviews over the years on Yelp. All is well!!

    2) One day, something happens or a mean person comes in and leaves a terrible review on their page. Oh crap, the owners are like what to do?! Everyone can see this review!

    3) The small business owner then does the most logical thing and tells all their customers after that incident to leave a review, etc. and mentions that it will really help their business if they show their support via a good review. Sounds like a good idea right??!

    4) A few up to a few dozen new customers proceed to leave a good review for the small business, but guess what? They don’t show up! They go straight to the Yelp Filter? In addition, the previous good reviews also disappear into the filter and only a handful of reviews are left on the page, INCLUDING the one bad review. The bad review will always stay on the page! Why is this you ask??

    Well, in short the Yelp filter was tripped and now the small business owner is screwed… It happened automatically, due to Yelps algorithm which perks up everytime a business receives more than their normal share of good reviews following a bad review. In other words, if a business normally receives one review a month on average, than following a bad review they start recieving 4 reviews a month (or one a week), Yelp immediately ASSUMES that the small business is gaming the system by compensating the bad review with good reviews and thus penalizes them. Yelp assumes it’s bogus reviews and comes down the the hammer.

    So how do you get out of this penalty then (which is permanent BTW)? Only one option: start paying up!! After this scenario happens to a business, the only way for them to stay in Yelp’s good graces is to keep paying $300-500+ a month to be an advertiser… Guess what, when you’re an advertiser, your profile falls under a different algorithm that doesn’t carry such a harsh penalty. In other words, more of your good reviews show up like before, and maybe even the bad reviews will be hidden by the filter. Funny how this works, no? Sounds a bit like Yelp EXTORTION!

    Yelp of course denies this vehemently and says they never add or remove reviews manually etc, but they conveniently fail to mention that there’s mulitple versions of their “constantly changing” algorithm (nice euphemism!) of which one of the input factors is if you’re an advertiser or not. Obviously, thismakes their denial moot! What a bunch of racketeers! I hate Yelp.

    TL;DR: Yelp profile treatment and filtered reviews for advertisers vs non paying businesses is not the same. Yelp=extortion. Still the same in 2014.

  • http://SEARCH.lol/ David Neville

    You will always get fake results when you give Yelp a monopoly on YOUR reviews. Looking for help revolutionizing search.

  • FloyydRTurbbo

    The serious question remains-is trashing a business from a concerted mob (as opposed to seven independent reviewers, who have no relation to each other), has the same protection of free speech? I look at Yelp ratings, before I visit an establishment and I use my own judgement as to the reviews were fair or prejudiced.. But if the business has only seven reviews and they all are trashing the business, the business has legitimate concerns as it happened here. This is akin to a food critic, who was sued in NY, which has similarities to this case. May be some one can enlighten me on that case.

  • Scott Avery

    Chris is exactly right. Yelp is the same thing as Enron in my opinion. I have NO idea why Google even acknowledges Yelp given that they are the biggest scam to small business ever. They certainly do filter anything good and only feature the bad. Besides that Yelpers (as they prefer) are some of the worst customers. They’re basically aspiring restaurant critic/hipsters who live a miserable life that comes out through their reviews.

  • Vincent Zegna

    So Yelp play the free speech card!
    A convenient umbrella to hide under and shout that they, and their users

    ‘freedom of speech’ is being violated. It seems that Yelp have a lot more
    to lose than the legal system ‘outing’ users who leave ‘fake’ feedback and
    review behind forum avatars and usernames.

    If it transpires that any reviews are indeed fake, and
    planted to defame or hurt a business, this will most definitely impact Yelp,
    since they would have known following their investigation after complaints from
    Hadeed Carpets. Yelp will lose trust from the business community – and if they
    are forced to comply by a higher court, giving up the names of their users, it
    will set a precedent for similar cases in the future, to not only sue Yelp, but
    other review systems such as Google, Yahoo, etc.,

  • Brian Reagan

    I am not a lawyer, but correct me if I am wrong..the right to speak anonymously doesn’t include the right to defame and escape liability for that simply by maintaining
    anonymity.

  • Atchuthan Sriskandarajah

    Yelp is full of garbage. We had a similar problem with Google, but at least they listened after we affirmed our claim via their online process. We have gotten numerous good genuine reviews from Yelp customers but they will not post those. So what is good for the goose is good for the gander. If good reviews cannot be displayed from legitimate customers, why should false reviews be displayed. Yelp deserves to get a beat down.

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