Yelp and the First Amendment Right to Privacy

In 2013, a carpet cleaning company brought an action in the state of Virginia against members of Yelp. The complaint alleged that anonymous users had posted fraudulent, defamatory comments on Yelp giving negative feedback about the company. The court was left to determine whether it had the authority to require Yelp to disclose the names of the users.Background

In October 2012, Hadeed Carpet Cleaning had 75 reviews on Yelp. After seeing certain negative reviews, the owner of Hadeed attempted to match them with customers in his database, but was unable to do so. After determining the users to be fraudulent, the owner brought suit against these “John Does” (the anonymous users) and sent a subpoena to Yelp requesting that it release the identities of the users who posted the allegedly fraudulent reviews. The main issue revolved around whether the anonymous reviews posted on Yelp were covered by the First Amendment, which protects anonymous speech.

Virginia had a statute on the books that allowed a person to uncover the identity of an anonymous person on the Internet if the plaintiff could show the following:

1. that they gave notice to the anonymous communicator through its ISP,
2. that the actions of the commenter were tortious or illegal,
3. that other attempts to discover the communicator had failed,
4. that the identity of the communicator is necessary to advance the claim,
5. that no motions challenging the lawsuit were pending, and
6. that the entity being subpoenaed (Yelp) has the information that is sought.

The Virginia Court of Appeals acknowledged that “an anonymous speaker has the right to express himself on the internet without fear that his veil of anonymity will be pierced for no reason other than because another person disagrees with him.” Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 752 S.E.2d 554, 560 (Va. Ct. App. 2014). The court went on to say that such protection will not be extended to a person who purposefully posts false reviews of a store that they have not patronized as a customer. Therefore, the court held that Yelp must disclose the identities of the allegedly fraudulent users.

Virginia Supreme Court

The Virginia Supreme Court reversed the holding of the appellate court. However, the decision from the high court did not revolve around the First Amendment issue presented during trial and appeal. In fact, the court didn’t even rule on the First Amendment question. Instead, it focused solely on a jurisdictional problem. Yelp is headquartered in San Francisco and has no offices in Virginia; therefore, the court found that a Virginia state court did not have jurisdiction to subpoena the out-of-state company. This left the potential for Hadeed to bring suit in California, where he could seek enforcement of the subpoena through a statute enacted in California.

What Does This Mean?

The fact that the Virginia Supreme Court did not answer the question of whether Yelp can be legally forced to release the identity of anonymous users means that question remains unanswered. This provides no rule as to the balance that exists between online anonymity and defamatory comments. Free speech is in the First Amendment for a reason. It’s one of the most cherished rights in our country, but free speech has limits. People and business owners also have the right to protect their names and brands from defamatory comments made in person, in writing, and on the Internet. This issue is likely to surface again as the law of the Internet is developed, and it will be interesting to see how the next court rules.

For more information about internet anonymity and defamation, contact Revision Legal’s team of experienced internet attorneys through the form on this page or call 855-473-8474.

Image courtesy of Flickr user Doug Maguire