Anonymous Yelp reviewers must be outed, US court rules

Filed Under: Featured, Law & order, Privacy

Yelp stickers, from Yelp on FlickrA US court in the state of Virginia ruled on 7 January that anonymous users aren't covered by First Amendment protection of free speech if a review "is based on a false statement".

Joe Hadeed, the owner of Hadeed Carpet Cleaning, which is based in Virginia, told the court that seven Yelp users had left anonymous, negative feedback about his business on the review service.

His lawyers filed against Yelp, demanding that it reveal the names of the posters.

The court agreed and ordered Yelp to comply, deeming that Hadeed had provided enough for it to conclude that the Yelp users might not actually have been customers of his business.

Hadeed had told the court that the bad reviews hadn't matched up with actual customers in his database.

Therein lies the "false statement" logic.

Judge William G. Petty of the Circuit Court for the City of Alexandria said in his majority decision that being anonymous online isn't the issue, per se; rather, it's the possibility that somebody's posing as a customer and making false, potentially libelous statements:

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.

[But] 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.

A dissenting judge, Senior Judge James W. Haley Jr., said in a separate opinion that Hadeed's assertions about the anonymous bad reviewers not being customers hadn't been proved and thus amounted to little more than self-serving suspicions.

The Washington Times quoted Justice Haley Jr.:

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.

Yelp and others are decrying the decision, charging that it is a blow against both free speech and consumers' access to information about companies.

Paul Levy, one of Yelp's lawyers and an employee of the Washington, DC-based nonprofit advocacy group Public Citizen, told the news outlet that Hadeed hadn't justified the unmasking of anonymous users:

Hadeed really did nothing to justify the need for the identity of the [John Does] in this case. ... It’s going to make it more difficult for the marketplace of ideas to get valuable information about companies.

Furthermore, Yelp spokesman Vince Sollitto told the Washington Times in a statement, when compared with other states, Virginia's decision is based on a lack of rigor when it comes to demanding proof before requiring that users be outed:

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.

Freedom of speech advocates - The Washington Post, Gannett Co. Inc., the Reporters Committee for Freedom of the Press and the American Society of News Editors - have filed friend of the court briefs in support of Yelp, The Washington Times reports.

Is this court decision an attack on First Amendment rights to free speech?

Justice Petty quotes many court decisions that make it clear that defamatory speech isn't protected by the First Amendment. One such quote, from Herbert v. Lando, 441 U.S. 153, 171 (1979):

[S]preading false information in and of itself carries no First Amendment credentials.

So really, what it boils down to isn't so much that negative reviews do or do not merit First Amendment protection. They do. It's only false negative statements that do not merit protection.

The question at stake is whether this decision was based on evidence that truly substantiated the falsity of Hadeed's negative reviews - i.e., was it proved that the reviewers weren't customers, or was it just a suspicion?

Is Yelp being forced to unveil anonymous reviewers because rigorous forensics were done to determine that the reviews were false?

Or was this action taken just because of Hadeed's gut feeling?

As commenters on my coverage of a recent astroturfing sting made clear, review sites like Yelp not only serve as a platform for puff pieces from astroturfers; they also get bogus negative reviews written about businesses by competitors looking to sink them.

Hadeed may have gotten picked on by a competitor who invented fake customers with fake reviews to discredit him.

If so, then the First Amendment simply doesn't apply to the bogus customers, and Yelp should, indeed, strip off the cloak of anonymity.

But if Hadeed failed to rigorously establish that the supposed customers were in fact anti-astroturfing then I'm with the dissenting judge in this case.

If you can't identify a supposed customer in your database who's posting negative reviews, maybe that review is, indeed, cooked-up defamation. Then again, maybe you're just not that hot at keeping up your database.

Image of Yelp stickers courtesy of Yelp on Flickr.

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21 Responses to Anonymous Yelp reviewers must be outed, US court rules

  1. Jack Bauer · 631 days ago

    Good. Dear Mr. Judge, please make your next target all of those ridiculous "anonymous" comments under news articles on the internet. Because most of the ridiculous comments are based on false statements. Let's reveal the real identities of these comment trolls... with links to their Facebook profiles. Thank you.

    • Blake · 630 days ago

      Bottom line, libel is a crime or at the very least a civil matter. If someone wants to go through the trouble of suing someone over false statements, what gives yelp,or facebook for that matter, the authority to stop the legal process?

    • So, giving a burger joint a bad review "anonymously" because they sucked at making burgers is bad ...but an anonymously giving millions of dollars to political organizations is OK... we really need to think our priorities.

  2. Alan · 631 days ago

    I wonder if Yelp even knows the identity of the posters or has information that can be used to identify them? If the reviews are fake and authors were smart, they might not be readily identifiable.

  3. Gee, I don't think we ever put carpet in Giftedcow5320's house...

  4. Blake · 631 days ago

    I think this article misses an important point. Freedom of speech is protected under the constitution, but I do not remember freedom of anonymity. No one is stifling negative reviews or freedom of speech. The business man in this case is trying to hold the speakers accountable for their statements.

    Making claims about the performance a local business does not endanger the life of the individual making these claims. If someone is going to make a claim, good or bad, he or she should be held accountable.

  5. Anonymous · 631 days ago

    I really don't understand Yelp, here. Sure, they're stuck between a rock and a hard place, but I think they're making the wrong move for their long-term viability as a service.

    There are clearly two options here: defend the anonymity of your users and seek to protect their reviews even if it damages the reputation of your site (and thus the quality of the service it provides) by protecting competitors' sniping, OR get out in front of the issue and change your service to seek to provide some degree of authentication for your reviewers, and then improve the quality of your service by featuring those authenticated reviews more prominently and lending them more weight, as well as explaining that you have to be more cooperative in deleting negative reviews by anonymous sources in order to protect yourself from libel suits and the like.

    If you pitch it as a way to improve the quality of your service, and present it as an opt-in choice for reviewing users (with the caveat that their negative reviews may not stick because you can't vouch for them), I think you can avoid the worst of the fallout from the online privacy crowd, while protecting your business from becoming irrelevant because you've lost the trust of the public in the act (or perception, at least) of standing up to proclaim that you want to protect and foster the paid-shill industry.

    Taken from another approach, there are three ways to deal with the issue of libel cases arising from such disputes and suspicions: the business can provide a record of all its transactions to Yelp so that Yelp can protect its' customers privacy and cross-reference to investigate discrepencies, Yelp can provide information about its users to the business so that it can investigate and present a case to Yelp, or a libel lawsuit can be generated and warrants issued so the government can investigate each case...

    I suspect that, when presented that way, privacy hawks can tell which is the least of the three evils.

  6. Lori · 631 days ago

    Freedom of speech is protection from the government. If you call person x something and they do not like it, they are still free to hate you for it. This is not a freedom of speech issue, unless this carpet company is a government run organization.

  7. Anonymous · 631 days ago

    What about all the false positive reviews put up by the businesses themselves or their friends and family?

  8. Just syaing · 631 days ago

    So negative reviewers who have not used the service are committing slander but when a company hires a PR firm to leave positive reviews from people who haven't used the service thats not fraud? Typical example of how corporations are ruining this country.

  9. Guy · 630 days ago

    Anonymity has a place - but a review that can't be tied to a customer is a worthless review.

    I agree with the above commentators - freedom of speech does not equal freedom of anonymity.

    Maybe there should be a freedom of anonymity too, but I'll be ignoring their customer reviews.

  10. LonerVamp · 630 days ago

    This is somewhat a cultural change thing as well. What's the difference between Yelp compiling what people say about a company, versus someone talking loudly at a bar about how such-and-such business gave them horrible experience? Or maybe a food critic? Business has always had to live with various people whose desires weren't met to their satisfaction. As a service that brings in user-supplied content, just like YouTube comments and Amazon reviews, they need to be taken lightly and should never trump experiencing a product/service yourself.

    For Yelp, I wouldn't use it if I weren't anonymous, for both good or bad reviews. There is a number of people online who decry anonymity as bad, but there are plenty of other people who would prefer it, which is one aspect of how the Internet has become so useful and important. And it's not even that I want to hide anything.

  11. Stuart North · 630 days ago

    Really not sure why people are so scared to back up their opinions by including their names! It really isn't anything to worry about, if you don't have anything to hide!

    • Stace · 629 days ago

      Probably because there are crazy ppl in the world and they don't want to run the risk of being a victim if they tick someone off

  12. Anonymous Evaluator · 630 days ago

    Can the same reasoning be applied to anonymous student evaluations of instructors in higher education? That would be great and definitely reduce grade inflation, restore education quality, and increase the chances for the students to get a job and repay their loans.

  13. ODA155 · 629 days ago

    What utter non-sense... to post a review on Yelp! you cannot remain anonymous... but if you have deep pockets and $$$$$ to burn you can give to political parties anonymously... ONLY in America.

  14. Jim · 629 days ago

    Personally, I wouldn't care one bit about an anonymous review. It's trash and should be treated as such.

    However, the plaintiff here has a very valid point: This could be a non-customer purposely lying to kill his business.

    To rule out that possibility, the defendent needs to convince the judge that these are real customers. If they can't, then it's THEIR butt on the line, because they have taken ownership of the content.

  15. Freedom of speech is not the freedom of allowing one person to damage another persons livelihood by publicizing false and damaging and malicious statements. This hurts REAL hard working people. I suppose people will never understand unless they are on the receiving end of this damage. The laws need to change.

  16. CJ · 618 days ago

    Great article... Insightful comments as well, i.e., why should "freedom of speech" mean "guaranteed anonymity"? It's the big problem with KKK robes - I want to say, "if you are going to say hateful things, grow a pair and at least let us see your face." People tend to temper what they say and do when they are held accountable for it. And yes, if we police the bad things which are said we should police the fluff bunnies too.

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.