The Virginia Supreme Court will hear arguments this morning in a online defamation case that some warn could have a chilling effect on anonymous speech on the Internet.
Yelp Inc., a California company that posts customer reviews of businesses on its social-networking website, is appealing a court order to reveal the identities of the authors of seven reviews critical of Hadeed Carpet Cleaning Inc. of Alexandria.
A brief filed in the Virginia Supreme Court by the Reporters Committee for Freedom of the Press and other media organizations argues the justices’ decision, while concerning reviews about a company’s services, will affect all online forums, including news websites with anonymous comments.
“The importance of anonymous commentary on news sites, as well as anonymous speech generally, are important factors that should guide the court’s decision in this case,” the reporters committee argues.
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According to a Virginia Court of Appeals ruling in January, Yelp users must register to post reviews, but they are not required to post using their real name or place of residence. Yelp does require those posting to have been customers of the business in question and to base their reviews on their personal experiences.
As of 2012, there were more than 80 reviews of Hadeed and a related company on Yelp’s website. Eight of the reviews were critical of the company.
Hadeed filed suit against seven of the reviewers who said or implied they were Hadeed customers.
Hadeed said it compared the reviews with its customer database and could find no record that the seven had been customers.
Hadeed filed suit in Alexandria Circuit Court in July 2012, alleging that the reviewers were not customers and that the comments were defamatory because the reviewers lied by saying they were provided shoddy services by the company.
Circuit Judge Lisa B. Kemler held Yelp in contempt when it refused to comply with an order to turn over documents revealing information about the authors of the seven reviews.
Yelp appealed to the Virginia Court of Appeals, arguing among other things that constitutional free speech rights require Hadeed and other plaintiffs to make a much stronger case when requesting a court order that anonymous posters be identified.
In its 27-page January ruling, the appeals court noted that an Internet user “does not shed his free speech right at the login screen.”
But the appeals court also said “that right must be balanced against Hadeed’s right to protect its reputation.” The appeals court ruled that the lower court judge correctly found that Hadeed had met the requirements of Virginia law for requiring Yelp to disclose the identities of the anonymous posters.
The appeals court said Hadeed made reasonable efforts to identify the anonymous posters and those efforts were fruitless.
Yelp appealed that ruling to the Virginia Supreme Court.
A friend-of-the-court brief filed with the Virginia Supreme Court by media organizations argues, “The products we use, the services we employ and the places we visit are highly personal, and an effective review system can only exist where those reviewers are unnamed and free to speak openly about their experiences.”
“Anonymous speech opens the door to a flood of valuable speech, and inevitably some false speech will enter through that same door. But without anonymity, consumers surely would think twice before reviewing a doctor who performed a personal medical procedure,” the organizations argue.
The reporters committee contends that the Virginia law in question requires more compelling evidence be shown by those seeking a court order to unmask anonymous posters.
Hadeed offered no evidence that the substance of the anonymous reviews was false, and the company’s belief that the reviewers were not Hadeed customers is founded on nothing more than speculation, the reporters committee argues.
Virginia law requires a court to look at whether a plaintiff such as Hadeed has a legitimate basis for claiming defamation, not what the plaintiff simply believes to be true.
The appeals court incorrectly discounted the reviewers’ speech rights and concluded that the reviews were commercial speech, which has a lower level of protection, the reporters committee argues.
“The products we use, the services we employ, and the places we visit are highly personal, and an effective review system can only exist where those reviewers are unnamed and free to speak openly about their experiences.”
From a friend-of-the-court brief filed by the plaintiffs