Helping Platforms Protect Speech By Avoiding Bogus Subpoenas

from the it's-important dept

We often talk about how protecting online speech requires protecting platforms, like with Section 230 immunity and the safe harbors of the DMCA. But these statutory shields are not the only way law needs to protect platforms in order to make sure the speech they carry is also protected.

Earlier this month, I helped Techdirt's think tank arm, the Copia Institute, file an amicus brief in support of Yelp in a case called Montagna v. Nunis. Like many platforms, Yelp lets people post content anonymously. Often people are only willing to speak when they can do so without revealing who they are (note how many people participate in the comments here without revealing their real names), which is why the right to speak anonymously has been found to be part and parcel of the First Amendment right of free speech . It's also why sites like Yelp let users post anonymously, because often that's the only way they will feel comfortable posting reviews candid enough to be useful to those who depend on sites like Yelp to help them make informed decisions.

But as we also see, people who don't like the things said about them often try to attack their critics, and one way they do this is by trying to strip these speakers of their anonymity. True, sometimes online speech can cross the line and actually be defamatory, in which case being able to discover the identity of the speaker is important. This case in no way prevents legitimately aggrieved plaintiffs from using subpoenas to discover the identity of those whose unlawful speech has injured them to sue them for relief. Unfortunately, however, it is not just people with legitimate claims who are sending subpoenas; in many instances they are being sent by people objecting to speech that is perfectly legal, and that's a problem. Unmasking the speakers behind protected speech not only violates their First Amendment rights to speak anonymously but it also chills the speech the First Amendment is designed to foster generally by making the critical anonymity protection that plenty of legal speech depends on suddenly illusory.

There is a lot that can and should be done to close off this vector of attack on free speech. One important measure is to make sure platforms are able to resist the subpoenas they get demanding they turn over whatever identifying information they have. There are practical reasons why they can't always fight them -- for instance, like DMCA takedown notices, they may simply get too many -- but it is generally in their interest to try to resist illegitimate subpoenas targeting the protected speech posted anonymously on their platforms so that their users will not be scared away from speaking on their sites.

But when Yelp tried to resist the subpoena connected with this case, the court refused to let them stand in to defend the user's speech interest. Worse, it sanctioned(!) Yelp for even trying, thus making platforms' efforts to stand up for their users even more risky and expensive than they already are.

So Yelp appealed, and we filed an amicus brief supporting their effort. Fortunately, earlier this year Glassdoor won an important California State appellate ruling that validated attempts by platforms to quash subpoenas on behalf of their users. That decision discussed why the First Amendment and California State Constitution required platforms to have this ability to quash subpoenas targeting protected speech, and hopefully this particular appeals court will agree with its sister court and make clear that platforms are allowed to fight off subpoenas like this. As we pointed out in our brief, both state and federal law and policy require online speech to be protected, and preventing platforms from resisting subpoenas is out of step with those stated policy goals and constitutional requirements.

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Filed Under: anonymous speech, free speech, intermediary liability, section 230, subpoenas
Companies: yelp


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  1. identicon
    Wendy Cockcroft, 31 May 2017 @ 5:52am

    Defamation on review sites

    Yelp are actually pretty good at taking down bogus content as long as you are able to prove it's bogus. All they ask is that you state your case clearly with evidence. They then check it out and if they're satisfied, down it goes.

    This is in their best interests as it's impossible to make an informed choice if the "information" is from trolls or trouble-makers and they're claiming to be accurate.

    Suing for defamation is expensive and ideally a last resort. As I've said any number of times, when people make allegations about you online it makes their audience curious; they check you out to find out if they're true or not. You can see this in the ever-changing search results which sort themselves according to what people choose to read. Therefore if you find yourself at the centre of false allegations, stay calm, post a rebuttal, and contact the platform involved to state your case. If it's one of those that leaves the allegations up, at least your rebuttal is there. Meanwhile, be careful not to be drawn into flame wars or anything like that; conduct yourself with dignity if you want to be seen as the innocent party. Remember, your general conduct online should reflect the image you want people to have of you so when they check you out that's what they find. Drama trolls are a problem but you can beat them. I did.

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