Virginia's Top Court Refuses To Unmask Anonymous Yelp Reviewers, But Not For First Amendment Reasons

from the technically-a-'win' dept

The long-running defamation suit against anonymous Yelp reviewers — brought by Hadeed Carpet Cleaning — finally has produced some good news… sort of. Hadeed’s lawsuit defines “problematic,” seeing as it both threatens anonymous speech and is predicated not on actual defamatory statements, but on the allegations that the reviewers were never actual customers of the business. Hadeed has argued that a review from a non-customer is defamation in and of itself, which obviously contains some very negative implications for free speech — anonymous or not — if he succeeds in his legal efforts.

Two lower courts chose to apply Virginia state law rather than the Dendrite Rules, and ordered Yelp to turn over identifying information. That decision was appealed by Yelp, and the state’s Supreme Court has responded by rejecting Hadeed’s unmasking request… but not for First Amendment reasons. Instead, its decision is based on a technicality — one that does little to ensure the future protection of anonymous speech.

[T]he Virginia Supreme Court issued its ruling (PDF) in favor of Yelp, finding that the company doesn’t have to disclose any user information, because the lawsuit shouldn’t have been filed in Virginia in the first place.

The court’s decision to focus solely on the issue of jurisdiction means that the more important public policy argument—whether the Yelp reviewers have a right to anonymous speech in this case—goes unaddressed.

While it is helpful that the court has made it clear that Virginia entities don’t possess subpoena power over non-residents, that’s pretty much the extent of the good news for Virginia residents. The other silver lining is that if Hadeed continues to pursue these reviewers, he’ll have to do it in California, where he’ll need to meet a higher standard if he hopes to obtain any identifying information.

“Although we were hoping the court would rule on both jurisdictional and First Amendment grounds, this is still an important win,” said Paul Levy in a statement. “If Hadeed turns to California courts to learn the identities of its critics, those courts will require it to show evidence to meet the well-accepted First Amendment test for identifying anonymous speakers. And so far, Hadeed has not come close to providing such evidence.”

Now, the question remains as to whether Hadeed will continue his unmasking efforts in a less-friendly venue. Considering he doesn’t dispute the content of the reviews — just the legitimacy of the reviewers — this would seem to be an obstacle not worth surmounting.

Paul Levy, however, says Hadeed may have little choice but to pursue this in an unfavorable venue because previous statements leave his company little choice but to continue on its quest to be proven “right.”

[I]n light of Hadeed’s previous public statements, it is hard to understand how it could not go forward in California. It took advantage of the pendency of this litigation to mount a public relations offensive portraying itself as an innocent victim of Yelp reviews, making a variety of strong claims about how seriously its business was harmed by negative reviews and speculating about whether Yelp was an “instrument for defamation.” It managed to manipulate a number of reporters at respectable publications into repeating its accusations as truths. And although some of its legal papers were circumspect in admitting that, based on its reviews of its customer database it could do no more than “wonder” whether the Does whom it sued in this case were really customers, in other places it made the affirmative assertion that there was a sufficient basis in its customer database to assert that the reviewers were, in fact, not customers.

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Companies: hadeed carpet cleaning, yelp

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Comments on “Virginia's Top Court Refuses To Unmask Anonymous Yelp Reviewers, But Not For First Amendment Reasons”

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Anonymous Coward says:

how is posting a false review not defamation? if the reviewer just said “I hate this company” then that is free speach. if they said ” this company did a horrible job and ruined my carpets” then that should not be allowed and they should be un masked and that is a false statement of fact with obvious intent to harm the company.

Anonymous Coward says:

Re: Re:

“And although some of its legal papers were circumspect in admitting that, based on its reviews of its customer database it could do no more than “wonder” whether the Does whom it sued in this case were really customers”

Maybe the customer moved, then wrote the review, maybe they didn’t. Still doesn’t mean they should ‘out’ themselves.

Anonymous Coward says:

Re: Re: Re:

I think it can go both ways. but if a person that was never a customer wrote a false review with false factual claims what recourse does a company have? what are the legal avenues to stop these if not to unmask? thats all I am curious about. it could have been a legit customer it could not the only way to know is to sue yea?. have the company submit to the judge their client list and have the identity given to the judge in camera and let him double check?

Mason Wheeler (profile) says:

Re: Re: Re: Re:

Agreed. I don’t like legal bullying, but if I was running a business and someone who wasn’t even a customer started falsely claiming to be a customer and maliciously spreading negative information about my business, I would view that as defamation and also tortious interference of business.

To turn one of Techdirt’s favorite patent tropes inside-out, why is tortious interference of business suddenly not illegal when you add “on the Internet” on the end of it?

John Fenderson (profile) says:

Re: Re: Re: Re:

I’m really torn by this issue. On the one hand, I agree with what you (and Mason) is saying here. On the other hand, simply getting sued is a pretty extreme and damaging thing to have happen. If someone posts a negative review that is accurate and they get sued for it, 99% of the time they will just remove the review to avoid the lawsuit. That’s not a path to justice either.

Mason Wheeler (profile) says:

Re: Re: Re:2 Re:

If someone posts a negative review that is accurate and they get sued for it, 99% of the time they will just remove the review to avoid the lawsuit. That’s not a path to justice either.

Truth is an absolute defense against a defamation suit. If the problem is that, even being in the right, the lawsuit is ruinously expensive to defend yourself against, that’s a completely different issue, and one that I agree sorely needs to be addressed.

One of the less well-known freedoms guaranteed by the First Amendment is the right to “to petition the Government for a redress of grievances,” or, in the modern parlance, “to have your day in court.” The idea is that if you believe you’re in the right, you should have nothing to fear in trying to get a judge to set it right. Unfortunately, over the centuries since the passage of the First Amendment, lawyers have completely torn that “guarantee” to shreds by the simple expedient of pricing justice out of the market. But you never hear politicians (a large percentage of whom come from a law background) talking about fixing that

John Fenderson (profile) says:

Re: Re: Re:3 Re:

This is exactly right. Outside of small claims, when it comes to civil suits the court system is geared so that the winner is nearly always the one that has the larger warchest. Even if you are certain to lose in court, you can drag the pre-trial process out so long that you can bankrupt your opponent.

This is the primary reason why I consider the US court system to be a force in opposition to justice. It’s something to be worked around and avoided. Which is a terrible and dangerous thing.

DB (profile) says:

I’m sympathetic to the issue of false negative reviews.

There are enough fake positive reviews on Yelp that there must be at least a few fake negative ones.

But being sympathetic to the issue doesn’t mean I would want a world where reviews couldn’t be anonymous.

I think that this case was decided correctly. Venue was not correct.

Even if venue had been correct, the case appears to have another fatal flaw. They didn’t plead that the review was, at its core, false. The claim was that they couldn’t match the review to their customer record, and that therefore the review might be libel.

In other words they weren’t claiming that the defamatory statement wasn’t true. They were just claiming that some of the irrelevant details might not be accurate. And that they should be able to strip the anonymity from the reviewer because of that.

DB (profile) says:

Mason, why is it considered OK for a business to be able to buy fake positive reviews but it is “defamation and also tortious interference of business” when there are negative reviews?

No one has standing to sue over the fake positive reviews. Even with standing, there it would be an overwhelming cost for a trivial improvement. But a business should be able to track down and financially ruin anyone that posts a negative review?

Anonymous Coward says:

How can a company prove that Yelp users were not customers without knowing who the reviewer is?

In terms of defending a lawsuit, it someone ruined my carpet, I would imagine it would be an open and shut case, they either did or didn’t ruin the carpets, if the reviewer was actually a customer, why would they need to hire a lawyer to defend themselves?

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