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EFF Files Amicus Brief In State Supreme Court Appeal Of Case Threatening Anonymous Speech

from the should-be-protecting-all-speech,-not-just-the-stuff-you-like dept

The EFF has filed an amicus brief in a case involving a business suing anonymous reviewers for defamation. In 2013, Hadeed Carpet Cleaning took seven anonymous Yelp reviewers to court over allegedly defamatory reviews. It asked the court to unmask the people behind the reviews, claiming that they weren't customers and therefore, their reviews were false and defamatory per se. Yelp, the host of the contested reviews, refused to comply with the subpoena, arguing that it didn't meet the constitutional requirements needed to override First Amendment protections.

Unfortunately, the state of Virginia has a much lower bar for plaintiffs to hurdle in unmasking anonymous commenters and reviewers. The Dendrite rules, which have been applied in a number of states, weren't used in this case. Instead of having to prove that these reviewers had definitely broken the law, all Hadeed had to do was show the court that it had a "good faith basis" for believing the reviews were defamatory. Hadeed never contested the content of the reviews, but rather relied on the assumption that these reviews weren't posted by actual customers and, almost solely because of this, were actionable.

The EFF notes in that the lower court decisions took this low bar and went even lower, threatening to make Virginia a very dangerous place for anonymous speech, especially if it continues to place its state laws above the First Amendment.

Hadeed alleged that the reviewers aren't actually customers, but the lower courts didn't require it to provide proof. Nor did Hadeed show how the reviews were defamatory. Whether or not what Hadeed claimed was enough under Virginia law, the First Amendment requires significantly more evidence of defamation.
The brief itself points out that stripping away the protection of anonymity will just encourage further bad behavior from a variety of bad actors, who will be able to use subpoenas to expose their critics and subject them to further harassment.
Amicus EFF has witnessed these tactics at work firsthand. By bringing an ultimately frivolous lawsuit, litigants often seek to unmask anonymous speakers in order to humiliate them or discourage their speech. Thankfully, most courts have been aware of the harm that would flow from allowing such baseless subpoenas to issue without first considering the justification for unmasking these individuals…

The use of harassing subpoenas is also a favorite tactic in online copyright infringement litigation. In a typical case, the owners of adult movies file mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lump hundreds of defendants together regardless of where their Internet Protocol addresses indicate they live. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography, as well as the accompanying costs of litigation, to wield as a sword to coerce settlement payments of several thousand dollars from each of these individuals…
The brief also argues that while anonymity is not guaranteed and can be removed under certain circumstances, the plaintiff's arguments haven't met these requirements.
All parties to this dispute agree that the constitutional privilege to remain anonymous is not absolute. Plaintiffs may properly seek information necessary to pursue reasonable and meritorious litigation. As the Court of Appeals put it, “if the reviews are unlawful in that they are defamatory, then the John Does’ veil of anonymity may be pierced, provided certain procedural safeguards are met.” (“Certain classes of speech, including defamatory and libelous speech, are entitled to no constitutional protection.”).

Rather, the dispute is as to the proper standard to apply in deciding whether to uphold the reviewers’ anonymity. The Court of Appeals rejected the guidance of numerous other state courts, including the leading case of Dendrite, and instead held that Virginia Code § 8.01-407.1 provides the sole standard for Virginia courts faced with unmasking anonymous speakers. This conclusion should be reversed because this interpretation of § 8.01-407.1 fails to meet the minimum standards of the First Amendment.
And if all of that fails to resonate, the EFF says there's also some jurisdictional questions with further First Amendment implications. Yelp's headquarters are in California and Hadeed should be filing its subpoenas there. Of course, the higher standard in California most likely means they would be rejected. But if the lower court's decision holds, people and companies looking to unmask anonymous commenters and reviewers will be making libel tourism stops in Virginia.
The lower court’s departure from standard practice means that Yelp is now subject to Virginia’s subpoena standards, rather than California’s. Under the rule that the lower court has adopted, Virginia’s subpoena jurisprudence can apply across the country. An enterprising plaintiff could file subpoenas in Virginia, knowing that Virginia has adopted a more lenient standard than its fellow courts. Non-parties would have to fight their requests in Virginia courts rather than the courts where the documents were stored, at additional and considerable expense. This is particularly problematic where, as here, the subpoena requests implicate First Amendment interests, which states are obligated to uphold on behalf of their citizens…
While there are many people who argue that online anonymity is just a way for people to say whatever they like without consequence, there's much more to it than insults, trolling and 4chan. The protections of anonymous speech date back to the founding principles of this country, predating the internet's rise as the simultaneous best/worst thing to happen to the world.

Online anonymity needs more protection than the state of Virginia is willing to afford it. The lower court set the bar for unmasking at toe-stubbing level and, if the state Supreme Court upholds it, will make Virginia the new home for the "tyranny of the majority." Hopefully, the state's top court will realize that it's also protecting the rights of American citizens, not just local businesses whose approach to criticism is to start filing lawsuits.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 5th, 2014 @ 3:22pm

    Again we see the judge shopping or in this case, the state who is easiest to get a case approved. This isn't about bad reviews. It's about people/businesses that look like they deserved the yelp about them and are desperately trying to hide that. Taking the case out of state to Virginia smacks of being totally out of the jurisdiction of that state.

    The best thing that may happen here is that Virginia's standards on defamation may be ruled unconstitutional. Which might not be a bad thing considering the circumstances of this article.

     

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

  2.  
    identicon
    Anonymous Anonymous Coward, Aug 5th, 2014 @ 3:48pm

    "The lower court’s departure from standard practice means that Yelp is now subject to Virginia’s subpoena standards, rather than California’s. Under the rule that the lower court has adopted, Virginia’s subpoena jurisprudence can apply across the country. An enterprising plaintiff could file subpoenas in Virginia, knowing that Virginia has adopted a more lenient standard than its fellow courts. Non-parties would have to fight their requests in Virginia courts rather than the courts where the documents were stored, at additional and considerable expense. This is particularly problematic where, as here, the subpoena requests implicate First Amendment interests, which states are obligated to uphold on behalf of their citizens…"

    Um, Dear EFF,

    Do you really think it is appropriate to write marketing materials for a state that is trying to grow it's burgeoning litigation/incarceration/fine business?

    Sincerely,

    Concerned Citizen #3,485,722,263

     

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

  3.  
    identicon
    Anonymous Coward, Aug 5th, 2014 @ 4:50pm

    Apparently they claim several reviews were entered by a person or persons which is/are not their client(s) and that what was posted in said review is defamatory. This is used as the rational for their request that the court unmask said reviewer(s) ...... because they have no idea who said reviewer(s) are.

    How do they know the reviewer(s) is/are not their client(s) when they do not know who the reviewer(s) are?

    They did not state why the reviews are not true?

     

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

  4.  
    identicon
    Anonymous Coward, Aug 5th, 2014 @ 4:56pm

    Re:

    To be fair, the business appears to be physically located in Virginia in this case.

     

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

  5.  
    identicon
    Anonymous Coward, Aug 5th, 2014 @ 4:57pm

    VA Case Law

    http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf

    p 16 - The right to engage in anonymous speech, particularly anonymous political or religious speech, is “an aspect of the freedom of speech protected by the First Amendment.” ... By prohibiting false routing information in the dissemination of e-mails, Code § 18.2-152.3:1 infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as “a direct regulation of the content of speech.”...

    III. CONCLUSION
    For the foregoing reasons, we hold that the circuit court properly had jurisdiction over Jaynes. We also hold that Jaynes has standing to raise a First Amendment overbreadth claim as to Code § 18.2-152.3:1. That statute is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment to the United States Constitution. Accordingly, we will reverse the judgment of the Court of Appeals and vacate Jaynes’ convictions of violations of Code § 18.2-152.3:1.




    http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-407.1


    § 8.01-328.1. When personal jurisdiction over person may be exercised.

    A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:

    ...3. Causing tortious injury by an act or omission in this Commonwealth;



    § 8.01-407.1. Identity of persons communicating anonymously over the Internet.

    A. In civil proceedings where it is alleged that an anonymous individual has engaged in Internet communications that are tortious, any subpoena seeking information...

     

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

  6.  
    icon
    Whatever (profile), Aug 5th, 2014 @ 6:56pm

    I love EFF

    I love EFF, because the very basics of their brief is transparently wrong:

    By bringing an ultimately frivolous lawsuit, litigants often seek to unmask anonymous speakers in order to humiliate them or discourage their speech.

    This isn't the goal at all. It's not about discouraging their protected speech, it's about dealing with those who seek to harm or destroy a business through fake or intentionally dishonest "reviews". Nobody wants to take away their free speech rights, they only want to make them responsible for when their speech is intentionally harmful, hateful, or outright lies.

    Put in real world terms, if someone wandered around town posting up notices about a business that were completely false (this restaurant serves dog food and hairballs, example) at some point their "campaign" would be actionable in the courts. If sticking "on the internet" on the end of those actions somehow makes it more protected, then the laws that make it so are a failing.

     

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

  7.  
    identicon
    Anonymous Anonymous Coward, Aug 5th, 2014 @ 7:07pm

    Re: I love EFF

    Reading fail, again.

    There is a process. First you identify the defamatory speech. Then, when that has been considered, you look for identifying persons in that courts jurisdiction. These guys did it backwards, and never identified the offending speech. These guys took the Prenda route.

    The EFF article has some more detail, that your comment shows you seriously need.

     

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

  8.  
    icon
    Whatever (profile), Aug 5th, 2014 @ 7:21pm

    Re: Re: I love EFF

    *sigh*.

    I read what was posted here (but didn't read the entire brief, I have a life). I understand the implications, but at the same time, I have a problem with the results.

    First you identify the defamatory speech. Then, when that has been considered, you look for identifying persons in that courts jurisdiction.

    How exactly do you propose to do that? You make it sound like a dawdle, but it's not easy to do here. Part of the claim in this case is that the reviews are malicious because they are not real, and are intended to cause harm by misinformation. The way to show that this is the case is to show that the writer was not or is not a client.

    Remember, the speech itself doesn't have to be overtly offensive on the surface to be malicious lies. I could review a restaurant I have never been to by saying that the food was cold, that there was a hair in my soup, and that the waiter told me to suck eggs when I pointed it out. On the surface, it would appear to be a legitimate review had those events actually happened. As a made up review it is intended to cause harm to the reputation of the establishment and it's staff. Identifying it as defamatory speech can only happen when you show the source.

    EFF appears to want to allow different standards "on the internet" from real life. That seems a little unfair.

    As I said, the point isn't to "humiliate them and discourage their speech" it's to stop negative shilling in it's tracks and to make others think twice before embarking on such a campaign.

     

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

  9.  
    icon
    Padpaw (profile), Aug 5th, 2014 @ 7:23pm

    The whole of the US is becoming a dangerous place for freedom of assembly, freedom of speech and almost every other freedom that used to be guaranteed by their constitution.

    Not just the odd state. but the vast majority of them

     

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

  10.  
    identicon
    Anonymous Coward, Aug 5th, 2014 @ 7:25pm

    Re: Re: Re: I love EFF

    In other words, all negative reviews are obviously written by fake non-customers because reasons.

     

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

  11.  
    identicon
    Anonymous Coward, Aug 5th, 2014 @ 7:58pm

    Re: Re: Re: I love EFF

    Ladies and gentlemen, Whatever - cocksucker for corporations.

     

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

  12.  
    icon
    Whatever (profile), Aug 5th, 2014 @ 8:06pm

    Re: Re: Re: Re: I love EFF

    In other words, you didn't bother to read, 5 paragraphs is clearly tl;dr material!

     

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

  13.  
    identicon
    Anonymous Anonymous Coward, Aug 5th, 2014 @ 8:21pm

    Re: Re: Re: I love EFF

    From the linked article, that you still have not bothered to read:

    "EFF has played an active role in helping courts set this balance, and we’ve stepped in to defend anonymous speakers who are unfairly targeted. As we argue in the new brief, the consensus that has emerged strikes a fair equilibrium: plaintiffs who seek to unmask an anonymous speaker must provide evidence to the court that their case is a strong one. Courts have slightly different ways of phrasing this requirement, but it is essential that they feel satisfied with the plaintiff’s evidence before they order an anonymous speaker to be unmasked.

    Therein lies the problem with Hadeed’s claim against the anonymous Yelp reviewers. Hadeed alleged that the reviewers aren’t actually customers, but the lower courts didn’t require it to provide proof. Nor did Hadeed show how the reviews were defamatory. Whether or not what Hadeed claimed was enough under Virginia law, the First Amendment requires significantly more evidence of defamation. We hope the Supreme Court of Virginia will agree."

    Any light starting to shine in your very dim world?

     

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

  14.  
    icon
    Whatever (profile), Aug 5th, 2014 @ 9:20pm

    Re: Re: Re: Re: I love EFF

    I am really not sure what you are getting at.

    The posts would be defamatory if they were posted falsely. Hadeed's claim is that they are not true, and represent the views of people who were not customers. The lower courts in the state didn't require any proof of this assertion, only the statement by the plaintiff.

    EFF is essentially trying to protect anonymous speech by protecting what could in fact be malicious false reviews. The evidence of the defamation comes by revealing if the reviewer was in fact a customer or not. EFF is pushing the concept that proof will never come because the identity should never be revealed. It creates a circular logic problem that cannot be easily resolved.

    I actually think the bright light of "freedom of speech" is perhaps making it hard for you to see definition in things. Perhaps sunglasses might help you in your overly bright, low contrast world.

     

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

  15.  
    identicon
    Anonymous Anonymous Coward, Aug 5th, 2014 @ 9:46pm

    Re: Re: Re: Re: Re: I love EFF

    As they point out in the article, the established procedure is to prove that there might be defamation first, then one can go after breaking the anonymity. That did not happen here.

    And on your point with regard to restaurants and 'hair' in the food. There is a wide variety of competency in restaurant management. A competent manager would resolve any issues prior to the customer leaving the premises. Properly done, the comments the customer would leave on Yelp would be 'I had a problem, and it was resolved'.

    Now, if it was resolved on the premises, and the customer went and complained on Yelp anyway, the issue becomes whether or not the post tells the truth, and that brings up the problem of proving what is true. Good managers would follow that up with their side of the story written with 'just the facts' and 'no animosity or accusation'. The kind of thing that requires a number of re-writes before posting (and maybe legal advise).

    Going legal is just asking for Streisand type attention.

     

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

  16.  
    icon
    Whatever (profile), Aug 5th, 2014 @ 10:20pm

    Re: Re: Re: Re: Re: Re: I love EFF

    And on your point with regard to restaurants and 'hair' in the food. There is a wide variety of competency in restaurant management. A competent manager would resolve any issues prior to the customer leaving the premises. Properly done, the comments the customer would leave on Yelp would be 'I had a problem, and it was resolved'.

    Exactly. If the establishment has "competent" staff, then they generally wouldn't see this type of review - UNLESS IT'S MALICIOUS.

    I think the whole point here is not that they agree or disagree with the reviews, rather that they assert that the reviews are entirely phony and don't represent actual customers. Moreover, the Virginia standard on this issue doesn't require the proving of the case before you go to court, only proving it in court.

    Going legal is just asking for Streisand type attention.

    You forgot "bulk collection" and "TSA scanner" to get the full Techdirt bonus points.

     

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

  17.  
    identicon
    Silence Dogood, Aug 6th, 2014 @ 12:33am

    My 2 cents

    Unmasking anonymous reviewers because a business owner claims, "I don't think these negative reviews are from real customers because I don't think these negative reviews are from real customers" is not a low bar--it's no bar.

    The takeaway here is if you want to write a review use Tor to establish a clean email address. Use Tor when you post your review. Make your review general enough that you can't be identified as the writer. Write a review with the assumption that some jackass is going to try to sue you for it someday. Then go on with your life.

     

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

  18.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 5:10am

    Re: I love EFF

    " It's not about discouraging their protected speech, it's about dealing with those who seek to harm or destroy a business through fake or intentionally dishonest "reviews"."

    That is the excuse they use, the real reason they need to unmask is for extortion purposes. You know this is the case.

     

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

  19.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 5:42am

    Re: Re: Re: Re: Re: I love EFF

    We all know this is what you do with the privilege of anonymous speech.

     

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

  20.  
    icon
    Whatever (profile), Aug 6th, 2014 @ 6:21am

    Re: My 2 cents

    The real take away is that if you are going to write a review, make sure you retain enough material to show it to be true. Take pictures, get names, and generally be ready to stand up for your review.

    While some are trying it, I think most places aren't stupid enough to sue someone for an honest, negative review that is based in fact and not fiction.

    However, the business of negative review shilling is actually pretty big, in the same manner that you can purchase positive shill reviews for your own establishment or product. Consider this article:

    http://www.forbes.com/sites/suwcharmananderson/2012/08/28/fake-reviews-amazons-rotten-core/

    T his guy was using it to create positive buzz, and the same sockpuppet accounts could be used to post negative reviews for others offering the same type of work. It's one of the reasons that Amazon now limits reviews to people who have purchased and received a product from Amazon.

     

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

  21.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 6:39am

    The victim harmed has to first prove "tortious injury",
    before personal jurisdiction can be established over the perpetrator. This is not the case here.

    The "action" which caused the tortious injury has to take place in Virginia, in order to establish personal jurisdiction over the perpetrator also. This is not the case here.

    Before a victim can seek discovery, the court must have personal jurisdiction over the "alleged" perpetrator before issuing a subpoena. This is not the case here.

    Notwithstanding all of the above, the case is very similar to the case law in VA on spam emails. Substitute the reviewer information for the spammer information, and change the code number, and the situations are essentially the same. The First Amendment protections apply here, just as much as to anonymous spammers.


    "By prohibiting false

    "reviewer"

    information in the dissemination of

    "reviews",

    Code § 8.01-407.1. Identity of persons communicating anonymously over the Internet.

    infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as “a direct regulation of the content of speech.”...





    http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-407.1


    § 8.01-328.1. When personal jurisdiction over person may be exercised.

    A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:

    ...3. Causing tortious injury by an act or omission in this Commonwealth;


    § 8.01-407.1. Identity of persons communicating anonymously over the Internet.

    A. In civil proceedings where it is alleged that an anonymous individual has engaged in Internet communications that are tortious, any subpoena seeking information...



    http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf

    p 16 - The right to engage in anonymous speech, particularly anonymous political or religious speech, is “an aspect of the freedom of speech protected by the First Amendment.” ... By prohibiting false routing information in the dissemination of e-mails, Code § 18.2-152.3:1 infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as “a direct regulation of the content of speech.”...

     

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

  22.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 6:59am

    Re: Re: Re: Re: Re: I love EFF

    "I actually think the bright light of "freedom of speech" ..."

    Ah, that evil temptation that all those foolish, weak minded people fall for every time.

    That's what's really bugging you here, isn't it? The idea that citizens might actually have any freedom not enumerated by Big Brother.

     

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

  23.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 7:48am

    Re: I love EFF

    ...and what if the reviewers ARE actual customers, with legitimate complaints?

    Then what?

    Like it or not, too many companies are trying this method of threatening anonymous speech, while not at all being familiar with the "Streisand Effect."

    But then again, they do always provide entertainment, that's for sure.

     

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

  24.  
    identicon
    AnonyBabs, Aug 6th, 2014 @ 11:42am

    Re: Re: Re: Re: Re: I love EFF

    Ah, here's your stumble:

    "The posts would be defamatory if they were posted falsely."

    No. Defamation is entirely about the statements made, not at all about who made them. Defamation must be proved first; then, if the defamer turns out to be a malicious non-customer, you may add your tortious charges on top. It's the proof of defamation Hadeed is trying to sidestep.

     

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

  25.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 5:51pm

    Re: Re: My 2 cents

    I think most places aren't stupid enough to sue someone for an honest, negative review that is based in fact and not fiction.

    Give them time. With enough places doing it, courts letting them and people like you insisting on keeping the bar low, it'll become the norm instead of the exception. Especially with people like you insisting that everyone else should just roll over in favor of the business.

     

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

  26.  
    identicon
    Anonymous Coward, Aug 6th, 2014 @ 7:27pm

    Quick question...

    So when a business hires an "online reputation management" company to astroturf review sites with 5-star ratings, do I sue the business paying for the reviews, or the reputation co. that's posting them?

     

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

  27.  
    icon
    John Fenderson (profile), Aug 7th, 2014 @ 10:12am

    Re: Quick question...

    That's a completely different thing from someone suing over defamation. You have no basis for a lawsuit at all unless you can prove that you were harmed. The best you could do is, if such reviews violate the site's TOS, is to report them to the site.

     

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

  28.  
    icon
    Blackhart (profile), Feb 25th, 2015 @ 6:12am

    yelp's process

    Am I allowed to write false and malicious reviews about services I've never used? And should those reviews be displayed to the public as an actual interaction with the business it's written about? Because yelp feels this is appropriate that is why Va. law should be in every state. Oh,if you think yelp does not approve of false reviews just follow this link http://www.yelp.com/topic/fort-lauderdale-elite-yelper-says-yelps-a-fraud

     

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


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