By Jesse Lively
Since its creation, one of the basic principles of the Internet has been anonymous speech, such as a comment board site like Reddit, a chat room, instant messaging, or even the comment section of a news article.[1] However, a recent Virginia court case poses a large threat to this principle of anonymous speech.[2] If the Virginia Supreme Court upholds the lower court’s ruling, then the anonymous speech component of the Internet may be history.[3] Many people anxiously await the Virginia Supreme Court’s decision on this matter.
The owner of Hadeed Carpet Cleaning Inc. in Springfield, Va., filed a complaint that alleges his suburban business was besieged by a rash of harsh Yelp reviews in 2012. That summer, company owner, Joe Hadeed, sued the seven reviewers for defamation and demanded that Yelp disclose their identities.[4] Both the state trial court and the Virginia Court of Appeals sided with him and held Yelp in contempt for not turning over the names.[5] Yelp then took its case to the state Supreme Court. While small businesses may have an interest in setting a precedent like this, multiple online companies like Google, Facebook and Twitter, warn that giving companies the power to identify Yelp reviewers would strike a blow against Internet free speech. Their opinion aligns with Judge Haley’s dissent when he stated that “the right to speak anonymously would be greatly diminished if those who objected to anonymous speech could readily employ civil discovery to unmask a speaker.”[6] In their rulings, the Virginia courts have relied upon Virginia Code § 8.01-407.1(A)(1)(b) (2014), a statute that allows a business to “unmask” the identity of an anonymous Internet user if has a legitimate, good faith belief that the speech was actionable, and if the requested information is necessary to advance the claim.[7] Among other unmasking statutes in the U.S., Virginia’s is by far the weakest, with other states requiring that a company make an evidentiary showing on the merits of the claim before a user can be unmasked.[8]
Paul Alan Levy, an attorney who represented Yelp and who works with the consumer advocacy group Public Citizen, said that this is the eighth state where he’s handled a similar appeals argument. He says: “I think most judges, when they think about our approach, decide it is the right one. I’m hopeful the Virginia Supreme Court will see it that way as well.”[9] The decision in Yelp v. Hadeed Carpet Cleaning has significant ramifications for the future of anonymous speech. While this matter in Virginia will be resolved shortly, the larger issue of anonymous speech on the Internet in a national context makes it ripe for Supreme Court review in the near future.[10]
[1] See Sophia Qasir, Note, Anonymity in Cyberspace: Judicial and Legislative Regulations, 81 Fordham L. Rev. 3651, 3652 (2013) (stating that the expansion of the Internet is stretching the outer limits of anonymous speech rights).
[2] See Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 752 S.E.2d 554 (Va. Ct. App. 2014).
[3] See Yelp Inc. v. Hadeed Carpet Cleaning, No. 140242, 2014 Va. LEXIS 84, at *1 (Va. May 29, 2014).
[4] See Yelp, supra note 2 at 557.
[5] See id. at 560-61.
[6] See id. at 570 (Haley, S.J., dissenting) (stating that the majority’s holding of Va. Code § 8.01-407.1 allows a business to identify an anonymous critic without any material evidence).
[7] See Va. Code Ann. § 8.01-407.1 (2014).
[8] See Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) (showing that plaintiff needs to demonstrate a prima facie claim).
[9]See Andrea Noble, Yelp Backed by Facebook, Google, Anonymous Review Case, The Washington Times (Oct. 27, 2014),https://www.washingtontimes.com/news/2014/oct/27/yelp-backed-by-facebook-google-twitter-in-anonymou/?page=all.
[10] See Yelp v. Hadeed Carpet Cleaning, Inc., 752 S.E.2d 554, 566 (Va. Ct. App. 2014) (rejecting persuasive authorities following the national consensus).