Dangerous Ruling In Virginia Allows Cleaning Company To Identify Anonymous Yelp Critics

from the getting-it-wrong dept

Last year, we wrote about a troubling case in Virginia, in which a cleaning company, Hadeed Carpet Cleaning, sued seven anonymous Yelp reviewers in an attempt to discover who they were. Hadeed did not dispute the contents of the negative reviews, but rather said that, comparing the information to their own database, they could not identify the reviewers, and thus believed that they might not actually have been customers. Thus, Hadeed claims, the reviews would be defamatory since they didn't actually represent the experiences of actual customers. Yelp fought back on behalf of its users, pointing out that the First Amendment protects anonymous speech. Yelp pointed out that 11 different states had adopted the so-called Dendrite rules concerning the high bar necessary to force a company to reveal anonymous commenters. The basic idea is that you need to really show that the law has almost certainly been broken before you can identify the individuals.

Unfortunately, the Virginia state court of appeals has decided that it won't follow those rules, but rather will follow a Virginia state law that may be a bit out of date and (much worse) that it will interpret that law to have a very low bar, thus requiring Yelp to identify the commenters just because Hadeed Carpet Cleaning has "a good faith basis" to believe that the comments were defamatory. That's a very low bar, and allows for all sorts of mischief by those looking to unmask anonymous critics. There is a brief dissent in the case, in which one of the judges on the panel notes that, while he agrees that Virginia's law is the important one, he's troubled by the claim that Hadeed had a "good faith" basis, noting that the law requires "reasonable efforts... needed to advance the claim" but that in court Hadeed's lawyer simply said they really "don't know whether that person is a customer or not...." It would seem like "well, we just don't know" is not exactly a "good faith belief" that they were not a customer and that the comment is defamatory. Unfortunately, the majority of the court didn't seem to understand this point.

Yelp is apparently considering appealing the decision. But, at the very least, this may lead to the Supreme Court eventually having to weigh in on a better standard for protecting anonymous speech.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    silverscarcat (profile), Jan 14th, 2014 @ 2:04pm

    One just needs to remember...

    That without anonymous speech, the U.S. wouldn't exist.

    Benjamin Franklin used anonymous speech to say what would have gotten him into trouble all the time.

    He was also a troll, predating the internet by well over 200 years.

     

    reply to this | link to this | view in thread ]

  2.  
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    weneedhelp (profile), Jan 14th, 2014 @ 2:51pm

    Ok PPL

    Where do we see ourselves in 15 years? Where is all this government overreach leading to?
    -
    What is it going to take? I used to think it was checkpoints... nope. Drones... nope. Getting your fun parts fondled by strangers just to get on a plane... nope. Having every communication collected... nope. Having law enforcement use war toys like the ADS at home... nope.
    -
    When ppl? When are we going to say enough is enough? Maybe when you are being forced on a train to an internment camp... but I doubt it.

     

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  3. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Jan 14th, 2014 @ 3:29pm

    The worst part of this is it's a BUSINESS bullying PERSONS.

    See where the notion that corporations are persons leads? Only raving lunatics like Mitt Romney and Mike Masnick think corporations have rights, but here, just on assertions, a business is able to leverage the corporatized courts and take away the free speech of "natural" persons. -- Since it's a business, can't actually be defamed, either, doesn't have any feelings, can't be killed, and so on: the standard should be VERY high, far higher than allegations that it's shoddy.

    This IS a horrible precedent. But again, it's where corporatism leads, so if you like Google and think it has "First Amendment rights", then expect other corporations to chase you around. Society has to keep corporations actually limited, not just in "liability" which means only that the corp can commit actual crimes and only pay money fines at most. Corporations are monsters.

    The Rich use their freedom to steal yours.

    11:29:46[m-842-1]

     

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  4.  
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    Luther Lowe, Jan 14th, 2014 @ 3:37pm

    Anonymity has always been a cornerstone of criticism designed for mass consumption: Tim and Nina Zagat culled their ratings from friends who filled out surveys. Food critics for the New York Times wear disguises. Ironically, the overwhelming majority of reviews on Yelp are created by people who choose to be non-anonymous. While it’s not the choice of the majority of users, it is a choice that is up to the individual and one that must be protected.

     

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  5.  
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    That Anonymous Coward (profile), Jan 14th, 2014 @ 3:43pm

    This seems to be part of the new fantasy that a single or few bad reviews destroys a business. We've seen the rise of the 'disparagement" clause tucked into the legal babble on websites, with stupidly high "fines".
    Perhaps rather than trying to burn the heretics, or treat them like scammers at every turn they would be better served asking the simple question... did we fail a customer in some way.
    If they thought their business was hurt by these alleged fake reviews, I wonder if they understand the much more massive damage they caused themselves pursing this silly claim.

     

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  6.  
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    Internet Zen Master (profile), Jan 14th, 2014 @ 4:01pm

    Re: One just needs to remember...

    Benjamin Franklin, one of the Founding Fathers, was also the ancestor of all modern trolling.

    Haven't thought of it that way before... kinda amusing actually.

     

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  7.  
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    Anonymous Coward, Jan 14th, 2014 @ 4:30pm

    I remember saying that with the way things are going, we'd need the darknets just to post negative reviews.

    Turns out it's not really a stretch anymore.

     

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  8.  
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    Me, Jan 14th, 2014 @ 4:33pm

    Bye Yelp.

    So I deleted my Yelp account yesterday because of this. I don't write defamatory or libelous reviews, but life is too short to have my personal data at risk of disclosure to some random business that takes offense at my opinions on where to grab a taco, what dry cleaners I prefer and where to shop for dog biscuits.

     

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  9.  
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    That One Guy (profile), Jan 14th, 2014 @ 5:24pm

    Re: Bye Yelp.

    Might have jumped the gun there a bit, should have waited to see if they appealed the ruling, since Yelp did fight back on behalf of their users here, they were just beaten by an outdated law.

     

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  10.  
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    That One Guy (profile), Jan 14th, 2014 @ 5:28pm

    Setting the groundwork for future endeavors?

    I can't help but wonder, with a ruling like this making it really easy to unmask anonymous commenters... how many of those judges are planning on running for a public office position sometime in the future, or have friends and/or relatives planning such?

     

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  11.  
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    predicto (profile), Jan 14th, 2014 @ 5:35pm

    Always Post Behind Seven Proxies.

    If you are going to make nasty comments always post behind 7 proxies. Of course, this won't help you if those nasty comments are about the NSA or important government officials, but then again, that's not really something people use Yelp for...

     

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  12.  
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    guven uzun MD, Jan 14th, 2014 @ 7:42pm

    Illegal Unlawful fraudulent yelp business tactics

    YELP IS ILLEGAL AND RUN BY CROOK-Criminal Corporation
    we had 3 good reviews and one bad review from competitors since bad reviewer was not our client .we complained to yelp this person not real bu fake review by competitors.But yelp did not take fake review and they have retaliated by taking good reviews out after being there more than 2 years.
    VIVA VIRGINIA REAL AMERICANS

     

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  13.  
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    Anonymous Coward, Jan 14th, 2014 @ 8:05pm

    Re: The worst part of this is it's a BUSINESS bullying PERSONS.

    Only raving lunatics like Mitt Romney and Mike Masnick think corporations have rights, but here, just on assertions, a business is able to leverage the corporatized courts and take away the free speech of "natural" persons.

    And yet the MPAA and RIAA aren't 'corporations', but are perfectly charitable and noble organisations of good people who want to protect the poor starving artists and executives. Riiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiight.

     

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  14.  
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    Anonymous Coward, Jan 14th, 2014 @ 8:20pm

    Re: Illegal Unlawful fraudulent yelp business tactics

    Don't worry, Yelp cannot possibly hurt your business more than you do.

     

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  15.  
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    Anonymous Coward, Jan 14th, 2014 @ 8:23pm

    If a had a few million dollars to fight off all the defamation troll lawsuits, plus all the federal defamation lawsuits that Eric Holder would have filed against me by now. I might consider speaking the truth under my real name.

    If the Virgina State Appeals Courts ruling is anything to go by, you're going to need every bit of that million dollars to bribe your way out of that kangaroo courthouse.

     

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  16.  
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    Just Sayin', Jan 14th, 2014 @ 9:44pm

    Anonymous doesn't mean not responsible

    Here's the rub - if a person posted those same comments with their name, would they have the same protection? Would they be liable for a lawsuit for defamation?

    The high bar is perhaps too high in the time of the internet and the ability (such as I use here) to post without identification. It means that I can say anything, and based on the "high bar" there is little if anything you can do about it. I could say that Techdirt ripped me off and didn't send me my limited edition hoodie, and there is no way to prove it. I could post that same "fact" all over the internet, and there would be no way to prove that Techdirt ripped me off or not. I could use 100 different names and cite 100 different cases and all of them fake as can be, but because I post them anonymously, I would somehow be LESS responsible than someone who signed their name?

    The rules and standards for anonymous speech are really out of date. The internet and the speed that rumors can spread (did you hear so and so was dead?) sort of suggests that at some point, the granting of extra rights to anonymous posters needs to be curtailed. Where good and bad reviews can make or break a company, a shill for is as bad as a shill against, and both should be exposed.

     

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  17.  
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    Rekrul, Jan 14th, 2014 @ 9:45pm

    Yelp is apparently considering appealing the decision. But, at the very least, this may lead to the Supreme Court eventually having to weigh in on a better standard for protecting anonymous speech.

    Yelp is apparently considering appealing the decision. But, at the very least, this may lead to the Supreme Court eventually having to weigh in and eliminate anonymous speech on the net.

    FTFY

     

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  18.  
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    Anonymous Coward, Jan 15th, 2014 @ 4:56am

    Re: The worst part of this is it's a BUSINESS bullying PERSONS.

    I am always amazed at how you can bring any conversation around to banging google.

    Fortunately for the world you are a person and can be killed, we can only hope that it happens one day soon!

     

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  19.  
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    Anonymous Coward, Jan 15th, 2014 @ 5:00am

    Re: Illegal Unlawful fraudulent yelp business tactics

    Just work harder to gain good reviews.

     

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  20.  
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    Pragmatic, Jan 15th, 2014 @ 6:41am

    Re: Ok PPL

    Assume all of the above is true, weneedhelp. Who will be running the internment camps and who will be herded into them? The only people I've ever seen referring to the possibility of setting up and running such camps were on the far right, and the internees were to be gay and "sexual deviants."

    Mind you, if a law was passed that enabled such a thing to be set up, be assured it would be a "bad guy" group that got put in it first "for the greater good" and to purge society of unwanted ideas. In other words, authoritarian SOMETHING will be running them.

    Just for the record, I hate ALL authoritarianism and won't tolerate it from the left, right, or anything else. Remember, they would only be able to get it accepted by the public if the target groups are not considered worthy of protection by the public as a rule. Remember Niemöller.

    And it'll start with the suppression of free speech, followed by book-burnings and the promotion of national/spiritual/personal "purity" or "purging."

    See every "internment camp" historical event ever.

     

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  21.  
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    Anonymous Coward, Jan 15th, 2014 @ 7:50am

    So, how DO you deal with customers you've never had describing situations which never occurred? Assume for a moment that the business owner isn't paranoid, and that Yelp does have moles which are intended to encourage you to sign up and pay for higher rankings within Yelp itself. How does the business owner negotiate that situation? What choices exist? Pay the ransom?

     

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  22.  
    identicon
    Jack, Jan 15th, 2014 @ 8:51am

    Re:

    Simply respond to the review on Yelp from your business account and explain that this is not a real customer and that the situation explained never happened. If you are in the habit of responding to any bad reviews with HONEST responses and admitting your mistakes while making it clear that you plan on learning form them, fake reviews and poor REAL reviews will not hurt you.

    If you astroturf, blame the customer, or don't respond to customer problems you deserve losing customers.

     

    reply to this | link to this | view in thread ]

  23.  
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    Ninja (profile), Jan 15th, 2014 @ 8:58am

    Re: One just needs to remember...

    Would it mean that he's OOTB's ancestor? One has to wonder how a brilliant mind like his and his genes yielded OOTB and other trolls (I'm just referring to TD!)

     

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  24.  
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    Anonymous Coward, Jan 15th, 2014 @ 9:37am

    Maybe amend the law to state that you can find out the identities of so-called anonymous reviewers on "good faith", but if it turns out you are wrong, you have to give them money/be fined/issue a public statement admitting you are a moronic bully.

     

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  25.  
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    Zonker, Jan 15th, 2014 @ 3:50pm

    We don't really know if Hadeed Carpet Cleaning is a carpet cleaning company or not, therefore we have a good faith basis to believe that they are really laundering drug money for terrorists and should obtain their full NSA phone and internet records for prosecution.

     

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  26.  
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    RyanNerd (profile), Jan 16th, 2014 @ 6:08am

    Re: One just needs to remember...

    You should also remember that Ben was an INTELLIGENT troll and a gossip. He would use his wit to spark creative discussion and debate. Unlike most trolls on the internet, who ignore the old adage: Better to remain silent and be thought a fool; rather than open your mouth and remove all doubt.

     

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  27.  
    identicon
    Why would I give a name if you like anonymous comm, Feb 9th, 2014 @ 9:29am

    You law scholars have it all wrong

    Amazing, indeed, that the majority of the (ill-informed) posters on here believe that libel is acceptable. It is true that anonymous comments - in this case, negative ones - are protected under free speech. However, this is true only if those comments are opinion. If the comments are presented as fact (fact: I stayed at this hotel and therefore am qualified to give a review) and are not based in fact (lie: I didn't actually stay at that hotel, but wrote a damaging Yelp review anyway), then the business does, in fact, have recourse to what amounts to libel.
    Now, I'll give you time to read that again, think about it, then wait for you to say, "Hooray, Virginia!"

     

    reply to this | link to this | view in thread ]


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