The First Amendment protects anonymous speech, including online reviews of products and services written by people using fake names. The right to anonymous speech, however, is not absolute. Defamatory speech, whether or not anonymous, is not entitled to protection, as there is no constitutional value in false statements of fact. If someone pretending to be a former customer writes a defamatory review on Yelp, Amazon, or some other consumer-review site, but doesn’t disclose his or her real name, how does the business owner go about identifying the individual so that the individual can be held accountable? The answer lies in Section 8.01-407.1 of the Code of Virginia, which sets forth a specific procedure for uncovering the identities of people who communicate anonymously over the Internet.
The proper application of this statute was recently discussed in Yelp v. Hadeed Carpet Cleaning, a case arising out of Alexandria. As of October 2012, Yelp’s site contained seventy-five reviews about Hadeed Carpet Cleaning, many of them critical. Included among these reviews were assertions by anonymous authors claiming to have been charged for work never performed and claiming that “precious rugs were shrunk.” Hadeed sued the anonymous authors for defamation, alleging that the reviewers were never actual customers of Hadeed.
After filing the lawsuit, Hadeed promptly issued a subpoena duces tecum to Yelp, demanding the production of documents that would enable Hadeed to identify the authors of the allegedly defamatory reviews. Yelp objected, arguing that Hadeed had not complied with the requirements of Section 8.01-407.1. Hadeed revised its subpoena to comply with the statute, but Yelp continued to object and refused to comply. On a motion to compel compliance, the Circuit Court for the City of Alexandria held that Hadeed’s subpoena satisfied the requirements of both the statute and the First Amendment, and ordered Yelp to disclose the information. Yelp refused, and was held in contempt. It then appealed that ruling to the Virginia Court of Appeals (which has jurisdiction to consider appeals of civil contempt orders), arguing that the First Amendment requires a showing of merit on both the law and facts before a subpoena duces tecum to identify an anonymous speaker can be enforced. The Court of Appeals disagreed, holding in a case of first impression that Section 8.01-407.1 is not unconstitutional and that it alone provides the unmasking standard in Virginia.
The statute provides that a plaintiff seeking to uncover the identity of an anonymous Internet speaker must show that (1) he gave notice of the subpoena to the anonymous communicator via the Internet service provider; (2) either (a) communications made by the anonymous communicator are or may be tortious or illegal, or (b) the plaintiff has a legitimate, good faith basis to contend that such a party is the victim of conduct actionable in the jurisdiction where suit is filed; (3) other reasonable efforts to identify the communicator have proven fruitless; (4) the identity of the anonymous communicator is important, is centrally needed to advance the claim, is related to the claim or defense, or is directly relevant to the claim or defense; (5) no motion challenging the viability of the lawsuit is pending; and (6) the entity to whom the subpoena is addressed likely has responsive information.
The parties agreed that Hadeed had met the first prong by giving the requisite notice to Yelp. In order to meet the second prong, Hadeed needed to show either that the communications are or may be tortious or that it had a legitimate good faith basis for its belief that the communications are tortious. The court held that Hadeed had done both. The court explained that even statements expressed as personal opinions could be defamatory if written by people who weren’t really customers, as the supposed opinions would be based on a false “underlying assumption of fact,” i.e. that the reviewer was a customer and that the opinion was based on personal experience with the business. Hadeed had attached sufficient evidence to its subpoena to show that it had thoroughly reviewed its customer database and found that it was unable to match the anonymous reviewers with the names of actual customers.
As to the third prong, the court found that Hadeed took reasonable but fruitless efforts to identify the anonymous communicators. Hadeed contacted Yelp to obtain their identities, but Yelp refused. Hadeed was then forced to resort to a subpoena duces tecum to obtain the reviewers identities. Considering the fourth prong, the court held that the identity of the anonymous defendants was not only important, but necessary to move forward with the defamation action. The fifth and sixth prongs were likewise met as there were no dispositive motions pending when the circuit court entered its ruling, and Yelp did not dispute that it possessed responsive information.
The court affirmed the trial court’s ruling and held that Yelp could be compelled to produce the requested information.