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:
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. The court held that Yelp was required to disclose the identities of the users.
The First Amendment protects anonymous speech. The Supreme Court established this principle in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), holding that an author’s decision to remain anonymous is an aspect of the freedom of speech protected by the First Amendment. Online speech receives the same constitutional protection — the medium does not determine the scope of the right.
But the right to anonymous speech, like all First Amendment rights, is not absolute. When anonymous speech is tortious — when it defames, harasses, or otherwise causes legally cognizable harm — courts have authority to order disclosure of the speaker’s identity through the subpoena process. The question is what standard a plaintiff must meet before that disclosure is compelled.
Courts across the country have developed varying standards for determining when a plaintiff has made a sufficient showing to compel disclosure of an anonymous online speaker’s identity. The most influential standards come from Dendrite International, Inc. v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and Doe v. Cahill, 884 A.2d 451 (Del. 2005).
The Dendrite standard, adopted in New Jersey and followed in several other states, requires the plaintiff to: (1) make reasonable efforts to notify the anonymous defendant that their identity is being sought; (2) specifically identify the allegedly actionable statements and set out the legal claims; (3) set forth the factual basis for each element of the claims; and (4) survive a motion to dismiss. Only after these requirements are met will the court order disclosure. This is a relatively plaintiff-friendly standard compared to the even more demanding Cahill approach.
Delaware’s Cahill standard requires the plaintiff to establish that the claim could survive a motion for summary judgment before disclosure will be compelled. This higher bar is designed to protect genuinely controversial speech — criticism of public officials and public figures on matters of public concern — from being silenced through strategic litigation aimed at identifying and deterring critics.
Michigan does not have a specific statute governing the unmasking of anonymous online speakers, but Michigan courts have addressed the issue in the context of defamation subpoenas. Michigan courts generally apply a standard that requires the plaintiff to make a threshold showing that the defamation claim is not frivolous and that the identity of the poster is necessary to pursue the claim. Courts balance the plaintiff’s interest in obtaining redress against the poster’s First Amendment interest in anonymous expression.
Fake negative reviews on Yelp, Google, and similar platforms can cause severe and measurable harm to small businesses. Studies have consistently found that a one-star drop in a Yelp rating correlates with a 5-9% decrease in revenue. When reviews are demonstrably fake — posted by people who have never patronized the business — a defamation claim is available, provided the plaintiff can satisfy the elements of the claim.
The key challenge is the element of falsity. A review that expresses a negative opinion (“worst restaurant I’ve ever been to”) is protected opinion, not actionable defamation. A review that implies a false statement of fact (“I found cockroaches in my food” when no such event occurred) is potentially actionable. The line between opinion and fact is fact-specific, and courts analyze the context, the precise language, and whether reasonable readers would understand the statement as expressing fact or opinion.
Yelp has been a frequent litigant on both sides of review disputes. The company has challenged subpoenas seeking reviewer identities on First Amendment grounds and has also faced accusations that its own content moderation practices are unfair to businesses. Yelp’s filter algorithm suppresses some reviews and highlights others in ways that businesses have challenged as arbitrary. Courts have generally declined to second-guess Yelp’s content decisions, finding that Section 230 of the Communications Decency Act immunizes Yelp from liability for its editorial choices about which user reviews to display.
If your business has been targeted by fake or defamatory reviews on Yelp, Google, or other platforms, Revision Legal’s internet lawyers can help you evaluate your legal options, pursue subpoenas to identify anonymous posters, and pursue defamation claims. Contact us at 855-473-8474 or complete the contact form on this page.
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