On January 7, 2014, a majority of a Virginia appellate court held that a social media provider can be required to disclose the identity of its anonymous users. See Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 0116-13-4 (Va. Ct. App. Jan. 7, 2014).
A Virginia carpet cleaning business had subpoenaed from Yelp the identity of certain Yelp users who posted negative reviews about the business. In particular, the business alleged that the reviews were false, defamatory, and did not match any customers in the business’s database. In response to the subpoena,
Yelp argued that the identities were protected under the First Amendment’s anonymous-speech principles.
The majority stated that an “internet user does not shed his free speech rights at the log-in screen,” but ruled in favor of the carpet cleaning business. In rejecting Yelp’s argument, the court relied on defamation and commercial speech doctrines—namely that defamatory language is not protected by the First Amendment and commercial speech receives less protection under the First Amendment—as well as a Virginia statute that prescribed the means of subpoenaing the identity of anonymous internet users.
The statute required (among other things) that notice be given to the anonymous user by the subpoenaed party and that the subpoenaing party has a “has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit is filed.”
The court held that these protections were sufficient to survive First Amendment scrutiny. The business satisfied these protections because it conducted “an independent investigation in an attempt to match the negative reviews . . . with customers,” but could not match any of the reviews to actual customers it had served.
The court thus ordered disclosure of the users’ identities so that the business could pursue its defamation claims against them. One judge dissented, and would have quashed the subpoena, finding that the right to anonymous speech outweighed the business’s interests based on the materials it provided to the court.
The law in this area continues to evolve. Currently, the Yelp court pointed out in footnote 6 of its decision, there are “at least nine unmasking standards—not including Virginia’s statutory standard—that state and federal courts have created.”
This article was prepared by James V. Leito IV (james.leito@nortonrosefulbright.com / +1 214 855 8004), an associate in Norton Rose Fulbright’s litigation practice group.
