Yelp Reviews Not Protected Speech — Virginia Court Order Outs Reviewers’ Identities

Since 2004, anonymous Yelpers have wielded a power over commerce that’s kind of disturbing.

The hostess didn’t smile enough when she sat you? One star removed! Served regular broccoli instead of Chinese broccoli with your dish? That sort of bait-and-switch breach in consistency will go neither unreported nor unpunished!

Honest reviews by real patrons are a great resource for consumers. But much like Internet commenters in general, Yelpers can feel emboldened by a cloak of anonymity they assume is guaranteed. According to a ruling in the Court of Appeals in Virginia Jan. 13, however, it isn’t.

Joe Hadeed, owner of Hadeed Carpet in Alexandria, Virg., suspected that seven Yelpers who gave its business poor reviews had never actually patronized his business, and that their reviews were fake and planted for nefarious, business-sabotaging reasons, according to a Business Insider  story yesterday. If the reviews are fake, Hadeed argued, they qualify as defamation and are therefore not protected by the First Amendment.

In order to determine whether the Yelpers were in fact Hadeed Carpet customers, the company subpoenaed Yelp to reveal the seven reviewers’ identities. When Yelp refused, Hadeed Carpet took them to court, which ordered Yelp to turn over the names of the alleged unhappy carpet customers.

As Rebecca J. Rosen pointed out in her piece for The Atlantic, the Supreme Court has upheld the right to anonymous free speech more than once. In 1960, the Court ruled that anonymous pamphlets and brochures were legally protected speech, and in an opinion issued in 1995, the Justices wrote, “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.”

But in this case, the court said that First Amendment rights don’t apply to deliberately false statements and that Hadeed had provided sufficient reason to think the seven might not have been customers — even though I wonder what Hadeed’s justification for unveiling the yelpers was. That he didn’t recognize them from their tiny profile pictures? That he couldn’t find an “Amy B.” in his records?

According to the Washington Times, Yelp spokesmanVince Sollitto said in a statement:

“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. 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.”

Businesses are allowed to respond and refute negative reviews on, and I wonder if that will weaken Hadeed’s case that his business has suffered as a result of the reviews.

The burden of proof for businesses in this type of case is lower in Virginia than in most other states. Electronic Freedom Foundation staff attorney Matt Zimmerman told the San Francisco Chronicle, however, that “based on speculation, now you can drag anonymous speakers into the light even if they were engaged in lawful speech…People will feel a bit cautious about criticizing companies, especially those that are well funded and have a history of litigation.”

Ben Cohen is the editor and founder of The Daily Banter. He lives in Washington DC where he does podcasts, teaches Martial Arts, and tries to be a good father. He would be extremely disturbed if you took him too seriously.