Media and Entertainment Law Newsletter, March 2014

03/24/2014

Virginia Court Compels Yelp to Identify Anonymous Reviewers in Defamation Case
by Andrew Guthrie

When are allegations of wrongdoing sufficient to pierce the veil of online anonymity? This was the question considered by the Virginia Court of Appeals in a recent case arising out of a handful of allegedly defamatory Yelp reviews. See Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 0116-13-4 (Va. Ct. App. Jan. 7, 2014). Unfortunately, the Virginia court held that the pleading bar is dangerously low and ordered Yelp to identify the defendant reviewers based solely on the plaintiff’s suspicion that the authors never actually patronized its carpet cleaning business.

In the underlying defamation action, Plaintiff Hadeed Carpet Cleaning, Inc. issued a subpoena duces tecum to Yelp – the social-networking website that allows users to post and read reviews of local businesses. Hadeed sought information about the authors of seven Yelp reviews that were critical of its carpet-cleaning business. Hadeed claimed that it had tried and failed to match these negative reviews with customers in its database. Accordingly, it suggested that these reviewers were never actually customers and that their critical commentary was therefore false.

Yelp refused to comply with this subpoena, claiming that it violated both state and federal law, including its users’ First Amendment right to anonymous online speech. The trial court disagreed and held Yelp in contempt for refusing to disclose the requested information.

Yelp appealed, but the Court of Appeals affirmed. It acknowledged that online speakers have a First Amendment right to express themselves anonymously and that Yelp reviews will generally be protected as a person’s opinion about a business he or she patronized. However, the court also observed that if the reviewer was never actually a customer of the business (as Hadeed had alleged), then the First Amendment protection disappears because the review is based on a false (albeit implied) statement of fact, i.e. that the reviewer actually patronized the business. Because Hadeed was unable to identify the negative reviewers as customers, the court found that there was sufficient evidence of wrongful conduct to pierce the veil of online anonymity.

Important to the court’s decision was a Virginia statute on “unmasking” anonymous online speakers. See VA. CODE ANN. § 8.01-407.1. While that statute imposes a number of procedural requirements for such orders, it places a minimal burden on the plaintiff to show that it has a legitimate claim – the plaintiff need only demonstrate that the alleged communications “are or may be tortious or illegal” or, failing that, that it “has a legitimate good faith basis to contend” the communications are tortious. Id. § 8.01-407.1(A)(1)(a).

In holding that this standard is consistent with the First Amendment and that Hadeed’s allegations were sufficient, Yelp sets a dangerous precedent for the ease with which a plaintiff can remove the protections for anonymous online speech. As the dissenting judge noted: “A business subject to critical commentary... should not be permitted to force the disclosure of the identity of anonymous commentators simply by alleging that those commentators may not be customers because they cannot identify them in their database.” If other courts and legislatures end up adopting a similarly low standard, the right to speak freely and anonymously on the Internet could become limited indeed.

For more information contact Laura Lee Prather at laura.prather@haynesboone.com or 512.867.8476 and Tom Williams at thomas.williams@haynesboone.com or 817.347.6625.

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