from the good-for-yelp dept
Hadeed then decided to sue seven anonymous reviewers for defamation. Here's the oddity: Hadeed does not appear to be suing them over the contents of the bad review. In fact, the company doesn't seem to dispute the various complaints about its pricing practices. Rather, it argues that it could not match these seven reviewers to actual customers within its database, and therefore, the reviewers are defaming them by misrepresenting that they were ever Hadeed customers. Hadeed appears to suggest that they reviews were really written by a competitor.
As we've discussed, many courts have adopted the so-called Dendrite rules for identifying anonymous speakers. The rules require giving the anonymous users a chance to respond and (more importantly) require the plaintiff to present enough evidence to prove there's an actual case. However, the court in Virginia chose to not apply any such rules, but rather allowed a subpoena to Yelp ordering it to identify the posters. Yelp has refused, and the court ordered compliance, which Yelp again refused, leading to the court saying Yelp was in contempt.
Public Citizen has now filed a brief on behalf of Yelp with the appeals court, arguing both that the Virginia court had no jurisdiction over Yelp, a California company, and that Yelp was correct to ignore the order since the First Amendment (which protects anonymous speech) requires much more proof before an anonymous speaker can be revealed.
When pervasive advertisements from a local merchant feature prices that seem to be just too good to be true, they may, in fact, not be the price that the average consumer will pay. Dozens of consumers who have used pseudonyms to post about their experiences with appellee Hadeed Carpet Cleaning, Inc. (“Hadeed”) on the popular website www.yelp.com, maintained by appellant Yelp Inc. (“Yelp”), report that Hadeed routinely fails to honor the advertised discount prices. Hadeed’s responses to several consumers on Yelp suggest that it recognizes the problem; yet its complaint for defamation singles out the authors of seven reviews posted on Yelp that say the same thing as the other online detractors of Hadeed and its sister business, Hadeed Oriental Rug Cleaning. Based on that allegation, Hadeed invoked the court’s subpoena power to strip its pseudonymous critics of their First Amendment right to speak anonymously.In the meantime, though, we have yet another case of a company suing over Yelp reviews -- which just makes me wonder how they ever expect to get more customers. Any company that sues over online reviews someone makes is clearly a company not worth doing business with, since they might, potentially, sue you over any bad review you write online about them.
The main question on this appeal—an issue of first impression at the appellate level in Virginia—is whether the trial court applied the proper legal standard in overriding the anonymous speakers’ First Amendment rights. Courts elsewhere have recognized that, given the valuable role played by the First Amendment right to speak anonymously in encouraging ordinary people to express themselves fully, it is necessary to balance that right against a plaintiff’s right to seek redress for wrongful speech by adopting a standard requiring a plaintiff to do more than articulate a good faith belief that the speech “maybe tortious.” Before stripping the defendant of a First Amendment right, these courts take an early look at the merits of the plaintiff’s claim to determine whether a valid claim has been alleged and whether there is a prima facie evidentiary basis for that claim. In this appeal, Yelp urges Virginia to adopt the same approach, and to remand this case to give Hadeed an opportunity to pursue its subpoena by meeting the proper standard.