YELP critics must be identified, court rules in online landscape altering decision
YELP critics must be identified, court rules in online
landscape altering decision
Decision could reshape rules for online consumer reviews
of products, businesses
By Kellan Howell and Phillip Swarts-The Washington Times
Wednesday, January 8, 2014
In a decision that could reshape the rules for online
consumer reviews, a Virginia court has ruled that the popular website Yelp must
turn over the names of seven reviewers who anonymously criticized a prominent
local carpet cleaning business.
The case revolves around negative feedback against
Virginia-based Hadeed Carpet Cleaning. The owner, Joe Hadeed, said the users
leaving bad reviews were not real customers of the cleaning service — something
that would violate Yelp's terms of service. His attorneys issued a subpoena
demanding the names of seven anonymous reviewers, and a judge in Alexandria
ruled that Yelp had to comply.
The Virginia Court of Appeals agreed this week, ruling
that the comments were not protected First Amendment opinions if the Yelp users
were not customers and thus were making false claims.
"The Virginia statute makes the judge a gatekeeper
to decide whether or not there's a common-sense reason for someone in our
position to get this information," said Raighne Delaney, a lawyer at the
Arlington firm Bean, Kinney & Korman who represented Mr. Hadeed. "In
order for someone like Joe Hadeed to find out who these people are, he has to
explain his case, and if he can convince the judge that there might be a real
lawsuit against this person, the judge can then say, 'Yes, you can get this
information.'"
But Paul Levy, a lawyer who represented Yelp, said the
ruling might be concerning to consumers.
"Hadeed really did nothing to justify the need for
the identity of the Does in this case," said Mr. Levy, who works at the
D.C.-based nonprofit advocacy group Public Citizen. "It's going to make it
more difficult for the marketplace of ideas to get valuable information about
companies."
Mr. Hadeed, who deferred comment to his attorney, said in
court documents that he believed most of the critiques — many of which
complained about unfair business practices and deceptive advertising — were
coming from a small number of users who were creating fake accounts to post
multiple reviews.
"Yelp said that all the posts had different IP
addresses, but how many IP addresses does one person have between all their
devices?" Mr. Delaney said. "It would be easy to create a number of
different fake accounts."
Yelp's attorneys cited legal standards established across
the country for identifying people who post anonymous comments and said Mr.
Hadeed had not met those requirements. But the court noted that the state has
its own standards for "unmasking" those who make potentially libelous
anonymous comments online and agreed with the Circuit Court for the City of
Alexandria, which said those standards had been met.
"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," Yelp spokesman Vince Sollitto 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."
In a 25-page majority opinion, Judge William G. Petty
said, "Generally, a Yelp review is entitled to First Amendment protection
because it is a person's opinion about a business that they patronized.
"The anonymous speaker has the right to express
himself on the Internet without the fear that his veil of anonymity will be
pierced for no other reason than because another person disagrees with
him," Judge Petty wrote.
However, the court said that First Amendment rights do
not cover deliberately false statements and agreed that Mr. Hadeed provided
sufficient reason to think the users might not have been customers.
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" and not subject to First Amendment protection, the
opinion stated.
Mr. Hadeed said his company could not "match
defendants' reviews with actual customers in its database."
Senior Judge James W. Haley Jr. stated in a separate
opinion that agreed in part and dissented in part with the majority that Mr.
Hadeed had not proved that the reviewers were not customers — he only suspected
they were not.
"A business subject to critical commentary should
not be permitted to force the disclosure of the identity of anonymous
commentators simply by alleging that those commentators may not be customers
because they cannot identify them in their database," the judge said,
adding that Mr. Hadeed's complaints were likely a "self-serving
argument."
The Washington Post filed a friend of the court brief in
support of Yelp, as did Gannett Co. Inc., the Reporters Committee for Freedom
of the Press and the American Society of News Editors.
Mr. Levy said the case was the first he had seen in which
the court ordered revelation of information on anonymous users.
"I've litigated in many cases for 14 years, and it's
the first time I've ever seen an appellate court order the identification, the
first case in which I've represented a party in which we thought the Doe was
clearly protected and the court said they were not," he said.
Yelp allows users to post reviews on local businesses and
services and is a popular place to complain or compliment restaurants and
shops. Yelp users are estimated to have written more than 39 million reviews.
Hadeed Carpet, which advertises heavily throughout the
D.C. area and in The Washington Times, has a two out of five star rating on
Yelp, based on nine reviews. The ninth review was posted Wednesday and is a
one-star condemnation of Hadeed's lawsuits.
But the review site also has a long, contentious history
of hiding reviews, listing them as "not recommended." Hadeed Carpet
has 88 hidden reviews, the majority of them negative, though the business has
received a number of five-star reviews.
Mr. Hadeed has responded to most of the reviews his
business has received, thanking the good reviews and saying he wants to address
the concerns of negative reviewers. The response to negative reviews always
asks for more information, including the Yelp user's full name.
Mr. Delaney argued that the fact Mr. Hadeed had so many
hidden reviews is telling. Reviews typically are hidden only when Yelp suspects
them of being false or violating its terms of service.
"The problem we had was that these posts were not
filtered; they were out there in the open. After we complained, Yelp filtered
them," he said. "What does that tell you?"
A second business, Hadeed Oriental Rug Cleaning, has
fared little better among users, garnering 2.5 stars from seven reviews. The
hidden reviews are roughly split between negative and positive.
© Copyright 2014 The Washington Times,
Comments
Post a Comment