Washington, D.C. – A carpet cleaning service that got bad reviews on Yelp should not be able to use the courts to find out the identities of its critics, Public Citizen told the Virginia Court of Appeals today.
Further, a lower court ruling that Yelp must provide identifying information about seven critics of the company, Hadeed Carpet Cleaning Inc., should be reversed, according to the brief, available here.
Although many courts throughout the country have adopted standards that spell out when anonymous Internet critics can be identified and when they can’t, Virginia courts have not. If no legal standard exists, or if a lax standard exists, businesses and their lawyers could use litigation to intimidate dissatisfied consumers into silence.
“The principles at stake here go to the core of the right of people to criticize companies on the Internet anonymously,” said Paul Alan Levy, one of the Public Citizen attorneys representing Yelp. “Many states have adopted a set of criteria that ensure the rights of online posters. Virginia needs to do the same.”
The case seeks to identify seven Yelp users who posted reviews of their experiences with Hadeed Carpeting Cleaning, generally complaining that although Hadeed advertises very low prices, when it came to the actual cleaning, the low price did not apply. Dozens of users have said that same thing on Yelp.
On July 2, 2012, Hadeed sued the authors of the seven reviews, alleging that the posts were false and defamatory. Hadeed didn’t deny that it sometimes charges twice the advertised price or sometimes charges for work not performed. Many other Yelp reviewers echoed the criticisms, but Hadeed did not sue those authors.
On July 3, Hadeed subpoenaed documents from Yelp that would identify the authors. Yelp objected, saying that the First Amendment protects its users from being identified unless certain requirements are met. Yelp also said that the subpoena was issued in the wrong state, because its records are in California, not Virginia.
An Alexandria, Va., trial court in November enforced the subpoena and ordered Yelp to provide the identifying information. Yelp refused to comply with the court order but invited Hadeed to identify any competitor whom Hadeed thought might be posting fake consumer reviews, because Hadeed had said the reviews might have been posted by a competitor. Hadeed did not follow up with the request but instead sought to hold Yelp in contempt of court. On Jan. 9, the court held Yelp in contempt, fining the company $500. The fine was stayed pending Yelp’s appeal.
In the appellate brief on behalf of Yelp, Public Citizen argues that certain conditions must be met before an anonymous Internet critic’s identity is unmasked without his or her consent. Among other things, there should be evidence that a defamation lawsuit has merit; the specific defamatory statements should be identified; there should be a factual showing that the statements made are, in fact, false and defamatory; and the court should weigh the potential harm of unmasking the Internet critic.
In this case, Hadeed has not shown that the critics made any false statements. Further, the defamation claim is weak, Levy said, because it alleges only that the reviewers were not actual customers – not that Hadeed did not engage in the misleading sales practices that the reviews identify.
In addition, the contempt finding should be reversed because Virginia courts don’t have the power to compel an out-of-state corporation that is not a party to a lawsuit to produce documents.
“Despite the free resources that Yelp provides to businesses to respond to reviews, unfortunately some turn to litigation aimed at silencing critics – even when the claims lack merit,” said Aaron Schur, senior litigation counsel for Yelp. “Rules must be established to protect this important speech, which is why Yelp is asking the court to clarify the standards for subpoena demands for user information. This is also why Yelp supports anti-SLAPP legislation on the state and federal levels.”
A SLAPP suit is Strategic Litigation Against Public Participation, and anti-SLAPP laws give defendants expedited remedies when baseless lawsuits are filed to discourage or punish protected speech.
Local counsel is Raymond D. Battocchi of Round Hill, Va.