The Appeals Court of Virginia just issued an important ruling that has the potential to completely change the online review landscape. Yelp may not be able to extend First Amendment protections to its anonymous users for very much longer.
It all started when Virginia-based business owner Joe Hadeed, owner of Hadeed Carpet Cleaning, noticed that he had accumulated several negative reviews. He normally attempts to reach out to all customers who post on Yelp, but he claims he could not authenticate those user experiences to any in his own database. After reaching out unsuccessfully to Yelp, he filed a formal complaint through his attorney Raighne Delany. The complaint alleged that the negative reviews published to his page were not authentic, or at least not made by real customers. After a subpoena was issued, Yelp took the battle to court where a judge from Alexandria ruled in favor of Hadeed.
The initial judgment was based on an interpretation of the First Amendment. The judge argued that free speech is a right granted to real citizens, and the anonymous comments that could not be verified did not qualify as “free speech.” The Virginia Court of Appeals sided with this ruling, upholding the idea that anonymous users have no free speech veil to hide behind.
For reputation management attorney Aaron Minc, this ruling represents a fair system: “The ability to uncloak anonymous speakers for defamation will likely only continue to get easier.” Minc went on to say that it’s much easier for a business to post defaming speech than it is to have it removed. So the ruling provides the same protection against falsified negative reviews as it would for inflated business claims.
But Eric Goldman, Professor of Law at Santa Clara University, disagrees and thinks the courts made a mistake: “I hope the Virginia legislature looks more closely at its unmasking statute, which is anachronistic because it was written before we fully appreciated the ways plaintiffs can abuse online unmasking efforts.” Goldman argues that plaintiffs will routinely claim information was falsified if they disagree with the claims. The implications of this ruling seem to suggest, in Goldman’s eyes, that any business would be free to remove reviews they found demeaning.
According to court documents, Joe Hadeed believed the group of negative reviews— which all complained about unfair business practices and incidents of false advertising—came from a group of fake users that were created to slander his business.
Yelp’s attorneys attempted to assuage those concerns with proof that each review came from a different IP. Mr Hadeed’s attorney was quick to cast doubt on that idea: “how many IP addresses does one person have between all their devices? It would be easy to create a number of different fake accounts.”
So Yelp’s attorneys tried another route, falling back on the legal precedents set by their own documents. This is where the case gets really interesting. Virginia actually has an unmasking statute already in place, which contends that a plaintiff can request unmasking if he can show that the issues at hand may cause damage to himself or his business.
The court, and the appeals court, seemed to rely on this statute to render their verdicts.
“We are disappointed that the Virginia Court of Appeals has issued a ruling that fails to adequately protect free speech rights on the internet, and which allows businesses to seek personal details about website users—without any evidence of wrongdoing—in efforts to silence online critics,” a Yelp spokesman said in a statement. “Other states require that plaintiffs lay out actual facts before such information is allowed to be obtained, and have adopted strong protections in order to prevent online speech from being stifled by those upset with what has been said. We continue to urge Virginia to do the same.”
Judge William G. Petty pointed out in his 25-page opinion that normal, verifiable reviews are still protected by free speech. This has some implications for anonymous speakers around the Web, who may or may not consider this an attack on their privacy rights. Judge Petty made a direct distinction, “[if] 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.”
This ruling seems very fair to me. As a reputation management service provider I deal with many businesses that have this kind of problems. I wished that there would be laws against posting anonymous reviews. Review sites should be required to validate user’s identities somehow, such as linking them to their Facebook accounts or requesting copies of their receipts. They should also release this info once a business owner requests it. This way we would have fewer fake and defamatory reviews. What do you think?