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YELP critics must be identified, court rules in online landscape altering decision

Decision could reshape rules for online consumer reviews of products, businesses

- The Washington Times - Wednesday, January 8, 2014

In a decision that could reshape the rules for online consumer reviews, a Virginia court has ruled that the popular website Yelp must turn over the names of seven reviewers who anonymously criticized a prominent local carpet cleaning business.

The case revolves around negative feedback against Virginia-based Hadeed Carpet Cleaning. The owner, Joe Hadeed, said the users leaving bad reviews were not real customers of the cleaning service — something that would violate Yelp's terms of service. His attorneys issued a subpoena demanding the names of seven anonymous reviewers, and a judge in Alexandria ruled that Yelp had to comply.

The Virginia Court of Appeals agreed this week, ruling that the comments were not protected First Amendment opinions if the Yelp users were not customers and thus were making false claims.

"The Virginia statute makes the judge a gatekeeper to decide whether or not there's a common-sense reason for someone in our position to get this information," said Raighne Delaney, a lawyer at the Arlington firm Bean, Kinney & Korman who represented Mr. Hadeed. "In order for someone like Joe Hadeed to find out who these people are, he has to explain his case, and if he can convince the judge that there might be a real lawsuit against this person, the judge can then say, 'Yes, you can get this information.'"

But Paul Levy, a lawyer who represented Yelp, said the ruling might be concerning to consumers.

"Hadeed really did nothing to justify the need for the identity of the Does in this case," said Mr. Levy, who works at the D.C.-based nonprofit advocacy group Public Citizen. "It's going to make it more difficult for the marketplace of ideas to get valuable information about companies."

Mr. Hadeed, who deferred comment to his attorney, said in court documents that he believed most of the critiques — many of which complained about unfair business practices and deceptive advertising — were coming from a small number of users who were creating fake accounts to post multiple reviews.

"Yelp said that all the posts had different IP addresses, but how many IP addresses does one person have between all their devices?" Mr. Delaney said. "It would be easy to create a number of different fake accounts."

Yelp's attorneys cited legal standards established across the country for identifying people who post anonymous comments and said Mr. Hadeed had not met those requirements. But the court noted that the state has its own standards for "unmasking" those who make potentially libelous anonymous comments online and agreed with the Circuit Court for the City of Alexandria, which said those standards had been met.

"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," Yelp spokesman Vince Sollitto said in a statement. "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."

In a 25-page majority opinion, Judge William G. Petty said, "Generally, a Yelp review is entitled to First Amendment protection because it is a person's opinion about a business that they patronized.

"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," Judge Petty wrote.

However, the court said that First Amendment rights do not cover deliberately false statements and agreed that Mr. Hadeed provided sufficient reason to think the users might not have been customers.

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" and not subject to First Amendment protection, the opinion stated.

Mr. Hadeed said his company could not "match defendants' reviews with actual customers in its database."

Senior Judge James W. Haley Jr. stated in a separate opinion that agreed in part and dissented in part with the majority that Mr. Hadeed had not proved that the reviewers were not customers — he only suspected they were not.

"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," the judge said, adding that Mr. Hadeed's complaints were likely a "self-serving argument."

The Washington Post filed a friend of the court brief in support of Yelp, as did Gannett Co. Inc., the Reporters Committee for Freedom of the Press and the American Society of News Editors.

Mr. Levy said the case was the first he had seen in which the court ordered revelation of information on anonymous users.

"I've litigated in many cases for 14 years, and it's the first time I've ever seen an appellate court order the identification, the first case in which I've represented a party in which we thought the Doe was clearly protected and the court said they were not," he said.

Yelp allows users to post reviews on local businesses and services and is a popular place to complain or compliment restaurants and shops. Yelp users are estimated to have written more than 39 million reviews.

Hadeed Carpet, which advertises heavily throughout the D.C. area and in The Washington Times, has a two out of five star rating on Yelp, based on nine reviews. The ninth review was posted Wednesday and is a one-star condemnation of Hadeed's lawsuits.

But the review site also has a long, contentious history of hiding reviews, listing them as "not recommended." Hadeed Carpet has 88 hidden reviews, the majority of them negative, though the business has received a number of five-star reviews.

Mr. Hadeed has responded to most of the reviews his business has received, thanking the good reviews and saying he wants to address the concerns of negative reviewers. The response to negative reviews always asks for more information, including the Yelp user's full name.

Mr. Delaney argued that the fact Mr. Hadeed had so many hidden reviews is telling. Reviews typically are hidden only when Yelp suspects them of being false or violating its terms of service.

"The problem we had was that these posts were not filtered; they were out there in the open. After we complained, Yelp filtered them," he said. "What does that tell you?"

A second business, Hadeed Oriental Rug Cleaning, has fared little better among users, garnering 2.5 stars from seven reviews. The hidden reviews are roughly split between negative and positive.

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