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


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.

  • 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.

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