Virginia Supreme Court Hears Yelp Anonymity Lawsuit
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UPDATED: Oct 29, 2014
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This week, the Virginia Supreme Court heard arguments in an internet free speech case that could have lasting ramifications for users who utilize the review feature available on Yelp and other online consumer information sites. The case, which pits a Virginia business owner against Yelp, will determine whether or not online review sites are entitled to keep reviewer information secret, even when the review itself may be defamatory in nature.
Virginia Business Sues Yelp for User Identity
Hadeed Carpet Cleaning of Alexandria, VA first took action against Yelp after a wave of negative reviews attacked the company in 2012. The owner, Joe Hadeed, sought recompense for alleged lost business in the form of a defamation lawsuit against the negative reviewers, seven of whom he believed to be fraudulently created by competitors, but could not identify the sources due to Yelp’s refusal to provide details of user information. After Yelp refused to comply with a subpoena requiring the San Francisco-based company provide user information for the seven reviews at issue, Mr. Hadeed brought the company to court in his home state of Virginia in an effort to enforce the order for reviewer contact details.
Yelp Argues Free Speech Protects Reviewer Anonymity
In its defiance of the Hadeed subpoena, Yelp argued that its users have a free speech protection that allows them to remain anonymous when posting reviews of businesses on the site. Anonymous posting is a strong factor that emboldens reviewers to contribute to the site, which means the willingness to contribute commentary on businesses and restaurants has its foundation in the privacy Yelp offers. Without anonymity, it is difficult to expect a review-centered website like Yelp to survive because many users would be unlikely to attach their identity to internet postings.
According to Yelp’s attorney, Paul Alan Levy of the Public Citizen advocacy group, Mr. Hadeed failed to provide sufficient evidence of defamation that could force Yelp to hand over the identity of the potentially defamatory commenters. Arguing that the suspicion of fraudulent and defamatory posts is insufficient, Levy said, “There has to be evidence of wrongdoing before you impose on the constitutional right to speak anonymously.” Finding Hadeed’s allegations lacking of additional evidence connecting the negative reviews to tortious activity, Yelp stood by its belief that First Amendment protections of speech allow the company to keep user information out of Mr. Hadeed’s hands.
Social Media Giants Support Yelp
Lending gravitas to the impact Mr. Hadeed’s lawsuit could have on Internet free speech, social media heavyweights Google, Facebook, and Twiter joined to file a friend-of-the-court legal brief in support of Yelp’s position. Such third-party, or amicus, briefs are not uncommon in lawsuits that have potential to have widespread influence in a particular area of American society or economy, and the brief filed by Google, Facebook, and Twitter was submitted in the hopes of convincing the Virginia Supreme Court of the negative consequences of curbing the right to speak anonymously on the Internet.
Arguing, “The right to speak anonymously would be greatly diminished if those who objected to anonymous speech could readily employ civil discovery to unmask a speaker,” the companies’ legal brief cautioned the Virginia Supremes that a ruling against Yelp would undermine constitutional protections by effectively standing in the way of speech issued over the internet. Claiming that Yelp provides an online forum for, “this country’s long tradition of town halls, private assemblies, robust debate, and anonymous complaints,” the social media brief argued that America has long recognized the right to anonymity in speech, and forcing Yelp to turn over reviewer identity would run afoul of the historical protections offered by the First Amendment.
Lower Virginia Courts Rule against Yelp
On its way up to the Virginia Supreme Court, Mr. Hadeed’s lawsuit found success in the lower levels of Virginia’s judicial system when both a state trial court and the Virginia Court of Appeals agreed that Yelp was compelled to provide reviewer information at the request of the subpoena. The Court of Appeals applied a balancing test to weigh the right of the reviewers’ freedom of speech against the right of Mr. Hadeed to take reasonable steps to protect his business from harmful defamation, and determined that Yelp’s concerns over 1st Amendment protections were not sufficient to precluded Hadeed from getting the information he needs to pursue a defamation lawsuit. Mr. Hadeed had satisfied a six-step obligation process in trying to obtain the user information without Yelp’s assistance, and had demonstrated that subpoenaing the online review company was the only way he could combat potentially fraudulent and defamatory comments about his services.
The Yelp freedom of anonymous speech lawsuit will be monitored closely by businesses and social media companies on both sides of the fence. While it is unlikely that the Virginia Supreme Court will open the door for lawsuits against online review forums, should it rule in favor of Mr. Hadeed the privacy protections that contribute so heavily to Yelp’s existence will suffer a significant blow, sending ripples across the online community. A ruling on the matter is expected in January.