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No Hiding Behind Yelp

Jan 14, 2014

One of my media law students sent this link to me the other day. Given that I’d already turned my grades in, I can only conclude that the student is genuinely interested in Media Law (thanks to my inspiration) and not simply trying to suck up. But the link discusses an interesting case. A Virginia appellate court has ordered Yelp to disclose the identities of seven reviewers who anonymously criticized a cleaning service.   

I’ve talked about this general subject before. A person has a right to speak anonymously. This is a good thing, as it protects people who may be advocating a politically unpopular message. Think about the Jim Crow South. The right to speak anonymously allowed critics to criticize the status quo and not worry about the KKK showing up on their lawn. 

But as is the case with most rights, there are limits. And a person who is defamed by an anonymous speaker has a right to sue. That of course means the victim has a right to find out who posted the offensive material. That means that the right to speak anonymously is not absolute. There are limits. And because of that, courts have to look at the facts of each case. 

Most courts have adopted tests that require the victim to make a showing that he would succeed with a defamation case. The victim can’t just get the names because his feelings are hurt. And in cases involving a site like Yelp – which is basically constructed around consumers opinions – the courts frequently deny the request for unmasking because opinion can’t be the basis of a defamation case.   

But this case presents a slightly different wrinkle. The victim contends that the reviews are fake – presumably generated by a competitor. If true, that would be deceptive advertising. The victim presented evidence that its database of customers didn’t match up with the comments in the reviews. And in the court’s mind, that removed the reviews from the “opinion” protection. 

In one sense, the decision makes sense. But critics point out that reliance on the cleaning company’s data base, which is subject to manipulation, seems a little self-serving. The Virginia Supreme Court may yet weigh in. But the biggest victim may be Yelp. For two reasons. If it can’t promise its users anonymity, they may not use the service. And if competitors are putting up phony reviews, Yelp may have a tough time convincing people about the site’s integrity.  Not cool.

 

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