The Virginia Court of Appeals held this week that Internet users who may have posted fake reviews of companies do not have a right to remain anonymous.
Hadeed Carpet Cleaning in Alexandria, Va., filed a defamation lawsuit against seven Yelp users who wrote critical reviews about Hadeed and a related business. Hadeed claims that it could not locate any records that suggest that any of the seven reviewers were Hadeed customers.
After filing the suit, Hadeed subpoenaed Yelp for information that would identify the seven reviewers. Yelp opposed the subpoena, arguing, among other things, that it did not comply with Virginia law and the First Amendment.
On Tuesday, the Virginia Court of Appeals in a 2-1 decision affirmed the state trial court’s decision to enforce the subpoena. A Virginia statute requires a subpoena for the identity of an anonymous Internet users’ identity to identify communications “that are or may be tortious or illegal.” The appellate court acknowledged that in general, a Yelp review “is entitled to First Amendment protection because it is a person’s opinion about a business that they patronized.” But the court held that this protection only applies if the reviewer is an actual customer whose review is based on personal experience with the business. If the reviewer never actually patronized the business, the court held, the review is a false statement of fact that is not entitled to First Amendment protection.
Also notable is the court’s decision to base its decision exclusively on a Virginia statute that outlines procedural rules for the issuance of such subpoenas. State and federal courts in other states have long relied on First Amendment tests developed by courts in New Jersey and Delaware, and which are generally seen as providing strong protections for anonymous online speech. But the Virginia court rejected these tests, concluding that by adopting the statute, “the General Assembly considered persuasive authority from other states and made the policy decision to include or exclude factors that other states use in their unmasking standards.” The Virginia ruling is the latest in a string of recent decisions, which we have covered here, that refuses to apply the New Jersey and Delaware First Amendment tests.
Judge James W. Haley dissented in part, writing that a “business subject to critical commentary, commentary here not even claimed to be false in substance, 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.”