Austin-based cleaning company Austin Gutter King Corporation, Inc. made headline news in Texas this week by filing a lawsuit against the poster of a negative review of its business on Google Places, the search engine’s business listing and review website.
The review originally came from a user named “Norma Lee,” but a court-ordered request from Google for the legal identity of the individual revealed that “Norma” was actually the husband of an employee of Austin Gutterman, a competitor of Austin Gutter King.
The review, in part, stated:
…they find it necessary to post fake customer reviews. While researching the source of numerous online posts related to this merchant we found that a high percentage of the postings source back to the same block of network addresses. Therefore it is HIGHLY unlikely that many of the customer service reviews you find posted about this merchant are legitimate. Caveat Emptor…
The anonymity of a reviewer on social media websites such as Yelp! or Google Places is typically protected by that site’s Terms of Service, and the identity of a user will not normally be revealed by the website without a valid court order. To obtain such a court order, however, is not an easy task.
One avenue that companies may take, and one taken by Austin Gutter King, is to move for discovery under Federal Rule of Civil Procedure 27, which is normally reserved for deposing witnesses who may be unavailable at trial. Companies moving under Rule 27 frequently argue that swift action is necessary to “preserve” electronic data that might otherwise be destroyed by serving a subpoena pre-suit.
A second option is filing a lawsuit against the “John Doe” who posted the negative review, and then invoking the procedures under Federal Rule of Civil Procedure 26(d)(2). The plaintiff would file a Motion for Expedited Discovery to serve a subpoena on the social media company and obtain John Doe’s identity.
Generally, under Rule 26, a plaintiff must have “good cause” before a court order may be issued. Case law to date establishes that “good cause” may exist if the information being sought may be destroyed or lost before formal discovery during trial can be conducted. In at least one case, a court has granted such a motion on the basis that information contained on the servers of some website operators can be easily lost.
Regardless of which route a company decides to take, however, First Amendment concerns mean that not just any company can obtain the identity of a social media user. Negative reviews are often bad for business, but unless the particular review contains content worthy of a lawsuit (in Austin Gutter King’s case, defamation and violations of the Texas Deceptive Trade Practices Act), companies seeking the identity of anonymous posters may have trouble getting this information.
Justin Haddock (jhaddock@fulbright.com, +1 512 536 3024) is an associate in Fulbright’s IP practice group.
