Days before a federal court ruled against net neutrality rules, Yelp was ordered to hand over the identities of seven anonymous reviewers, which sparked outrage among First Amendment activists.
The order comes after Yelp, the reviewing website, was subpoenaed by Hadeed Carpet Cleaning in Alexandria, Va, which wanted to sue seven negative reviewers for defamation but needed Yelp’s help in revealing the users’ real identities. Even though the website refused because it would violate users’ right to free speech, the Virginia Court of Appeals applied that because the negative reviews were written by people who were not Hadeed’s customers and First Amendment protections only apply to real customers, then the subpoena must be upheld.
Paul Levy, attorney for Yelp, gave a post-ruling comment to CNET that hinted at a large negative implication of this case:
“Other courts and other states have shown support for citizens’ First Amendment right to speak anonymously. Consumers may feel the need to speak anonymously for privacy reasons or for fear of unfair retaliation by a business. This ruling could have a chilling effect on free speech in Virginia and Yelp will continue to fight to protect consumers’ privacy and free speech rights. This ruling also shows the need for strong state and federal legislation to prevent meritless lawsuits aimed solely at stifling free speech.”
Michael Shammas of Policy Mic disagrees with the Court’s decision and writes that this is blow against all online anonymity, not just Yelp.
The internet provides a forum to practice one’s religion, to speak freely and openly, to launch a press (such as this very website), and to peacefully assemble — digitally.
Thus, while there is immense danger in online anonymity, the advantages are far greater. A civil internet is desirable, yes, but an accountable government is even more desirable, and online anonymity goes a long way towards promoting just that sort of government. When making decisions, courts must balance the societal costs and benefits of their holdings.
Like the net neutrality ruling,the Virginia Court’s decision will unlikely lead to a sudden loss of First Amendment rights and its greatest impact will be against fake reviews. According to attorneys Randy Shaheen and Mark Goodrich for All About Advertising Law,
it is important to note that this ruling does not necessarily open the door for every business that has received negative reviews to file suit to obtain the identities of reviewers. First, the court indicated that “generally, a Yelp review is entitled to First Amendment protection because it is a person’s opinion about a business that they patronized.” The court explains:
“This general protection relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, in that the reviewer was never a customer of the business, then the review is not an opinion; instead, the review is based on a false statement of fact – that the reviewer is writing his review based on personal experience. And ‘there is no constitutional value in false statements of fact.”
Outside of court there have already been efforts to crack down on fake reviews because of the damage in lost business they can cause, notes Kathryn Bell of Garvey Schubert Barer. She writes that, as” fraudulent reviews on Yelp rose from 5% in 2006 to 20% in 2013,” New York’s Attorney General Eric T. Schneiderman handed out $350,000 in penalties to those behind them. Yelp’s CEO Jeremy Stoppleman also admitted to setting up sting operations to clean up staged reviews, reported Pierre Zarokian for Search Engine Watch.
However, back to this ruling, this case is unique because Virginia, unlike other states, only requires that plaintiffs have “legitimate, good faith basis” to believe that they have been defamed, notes Maryanne Stanganelli of BakerHostetler. Other jurisdictions, Stanganelli adds, have stricter regulations where a plaintiff must “support the defamation claim with facts sufficient to defeat a summary judgment motion.”
For businesses based in other states looking to take down negative anonymous reviews, lawsuits can be cumbersome, writes Judy Endejan, another Garvey Schubert Barer attorney. Not only would businesses have to prove that they are being defamed in order to unmask the anonymous users but “defamation litigation might cause a ‘Streisand Effect’ – meaning that your lawsuit against an anonymous blogger might generate far more publicity than any publicity possible from the negative review. This could be bad for business.”
Chasing a few bad reviews might not be worth it for smaller businesses and litigation does not ensure a boost in positive reviews. For Hadeed Carpet, its still stuck at two stars.