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 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.
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…
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.”).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.
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.
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.