Virginia Supreme Court allows Yelp to keep IDs of online critics private
By Frank Green, Richmond Times-Dispatch – 4/16/2015
A divided Virginia Supreme Court tossed out a contempt citation in an anonymous-speech defamation case involving Yelp, a California social media company, and Virginia-based Hadeed Carpet Cleaning.
The closely watched case raised a number of First Amendment concerns and issues, but it was decided Thursday on jurisdictional grounds.
In a 16-page majority opinion, Justice Elizabeth A. McClanahan concluded that Alexandria Circuit Judge Lisa B. Kemler could not enforce a subpoena seeking information about anonymous posters on Yelp Inc. about a Virginia company.
The majority ruled that the judge could not enforce the subpoena against Yelp — which is not a party in the suit and not in Virginia.
In 2012, Hadeed Carpet Cleaning Inc. of Alexandria — which took over the former Richmond-area Mercer Rug Cleansing in 2011 — filed a defamation suit against seven people who posted anonymous, negative reviews of its services on Yelp, a website that publishes customer reviews of businesses.
Hadeed said a search of its customer database showed that the reviewers were not real customers and that their comments were defamatory because they lied about being provided shoddy services.
Kemler held Yelp in contempt when it refused to turn over documents about the seven people who had posted the reviews on Yelp. The Virginia Court of Appeals upheld Kemler’s decision, ruling that the free speech right “must be balanced against Hadeed’s right to protect its reputation.”
Yelp appealed to the Virginia Supreme Court, arguing among other points that the seven were engaging in constitutionally protected anonymous speech.
Yelp argued that Hadeed had to do more than make a good-faith complaint — the company also needed to produce evidence of wrongdoing before the court could impose on First Amendment rights.
When the case was argued before the justices in October, a lawyer for Hadeed disagreed and said Yelp was asking the company to prove it never cheated anyone at any time in Virginia before a judge can order the unmasking of the anonymous posters.
L. Steven Emmert, an appellate lawyer, said that while the majority ruling finds that the Virginia statutes do not provide for the sought subpoena power, Hadeed may have another way to get the information. But it may have to go to California courts to do so.
According to a Virginia Court of Appeals ruling in the case last year, Yelp users must register to post reviews, but they are not required to use 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.
A brief filed in the Virginia Supreme Court by media organizations sides with Yelp and says the justices’ decision, while concerning reviews about a company’s services, will affect all online forums, including news websites with anonymous comments.
Paul Alan Levy, the Public Citizen attorney representing Yelp, said that “although we were hoping the court would rule on both jurisdictional and First Amendment grounds, this is still an important win.”
“If Hadeed turns to California courts to learn the identities of its critics, those courts will require it to show evidence to meet the well-accepted First Amendment test for identifying anonymous speakers. And so far, Hadeed has not come close to providing such evidence,” Levy said.
fgreen@timesdispatch.com
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