- The Washington Times - Tuesday, June 10, 2014

The Virginia Supreme Court has agreed to hear an appeal by the popular website Yelp, which was ordered earlier this year to turn over the names of seven reviewers who anonymously criticized a prominent local carpet-cleaning business.

The business review website is pitted against Virginia-based Hadeed Carpet Cleaning, whose owner sought to unmask anonymous commenters after suspecting that the negative reviews left on Yelp were not made by real customers.

Both an Alexandria judge and the Virginia Court of Appeals have sided with business owner Joe Hadeed, ruling that the comments were not protected First Amendment opinions if, in fact, the Yelp users were not customers and thus were making false claims.

The court granted the appeal on May 29, and the case is likely to go before justices in Richmond in September or October.

“At the heart of this case is the tension between two fundamental rights — right to free speech [and] the right to protect your reputation,” Mr. Hadeed’s attorney, Raighne C. Delaney, said. “Where do you draw the line in terms of how much you really need to show you need information to protect your reputation?”

But privacy advocates worry the case could stifle free speech online.

“In this case, I think ultimately the question is whether there will be a right to make anonymous commentary about merchants,” said Paul Alan Levy, an attorney who represented Yelp and works with the consumer-advocacy group Public Citizen.

In prior arguments, 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.

Virginia lawmakers adopted their unmasking standard in 2002, which states in part that the person seeking to subpoena an Internet user’s identity must show that communications “are or may be tortious or illegal” or that the person requesting the subpoena “has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit was filed.”

In its ruling, the appeals court wrote that it would not declare the law unconstitutional and therefore considered it in the decision.

Mr. Levy said other states have adopted unmasking laws with more specific standards but argued that Virginia’s sets a procedure for a court to reach a decision rather than setting “a mandatory test” that requires a subpoena be granted.

“The law provides a procedure for setting up a question of whether a subpoena is permissible. It doesn’t say if it meets the parameters of the laws that the subpoena must be enforced.” Mr. Levy said.

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