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.