One of the most common inquiries around reputation management law that I receive is how a business, brand or professional can access the names and identities of people who use review sites to unfairly malign them.
This is a valid question because review sites are frequently being used for a variety of other purposes. For example, business competitors can try to capture larger market shares by making themselves look better, and personal vendettas can play themselves out through negative reviews anywhere a person’s name or their place of work is found online. The Terms of Service for most of these sites, however, require participants to be actual customers who are expressing their personal experiences.
One of the biggest challenges is that most of the companies that own the review sites are based in the U.S., and American courts have largely protected such inquiries under First Amendment rights by requiring the plaintiff to first demonstrate a legally and factually sufficient basis to substantiate the claims. Without knowing the identity of the defendants this test can often be difficult to meet at a claims or discovery stage.
One recent case in Virginia may signal a shift in this trend. Last fall the Circuit Court of Virginia rule in Hadeed Carpet Cleaning, Inc. v. Doe that the review website Yelp had to comply with a subpoena for production of evidence and provide information which would identify posters on its site.
The company claimed the reviews did not match any actual customers in their records, and the company claimed they were written by a business competitor. Yelp objected to the production on a number of grounds, including the fact that the documents were held in California and the subpoena should properly be brought there to be enforceable.
Judge Clarke stated:
This Court recognizes that anonymous speech and even false speech is entitled to protection under the First Amendment to the Constitution. These types of speech, however, are not entitled to the same level of protection as truthful or political speech. Defamatory speech is not entitled to the same protection as truthful or political speech.
Alison Frankel, commenting on this case, points to a Yale Journal of Law & Technology article suggesting an emerging consensus in American courts that an the line of cases from the 2001 New Jersey case of Dendrite v. Doe and the 2005 Delaware Supreme Court case in Doe v. Cahill, which strikes the appropriate balance between the First Amendment and the need for disclosure. The test from these cases roughly follows the following framework:
- the plaintiff must provide notice to the potential defendant for them to defend their anonymity
- the plaintiff must specify which statements allegedly violate their rights in a manner that would survive a motion to dismiss
- ensure the complaint states a cause of action for each statement against each defendant
- require the production of supporting elements of the claim
- balance potential harm of preventing the claim from proceeding with the right to remain anonymous
The Deleware court in Cahill emphasized points 1 and 2 above and was justified by concerns that anonymous speech could be chilled by a “sue first, ask questions later” approach where minimum standards of protection existed for defendents. The result could include stifling important debates of public concern because of fears of being unmasked. However, the analysis in Cahill discarded the remaining components of the test as unnecessary.
Various American courts have used different combinations of the Dendrite-Cahill test to assess whether anonymous posters should be reveled. However, no appellate level court in Virginia has ruled on the issue, and courts in other states have used procedural rules instead of the Dendrite-Cahill test to protect anonymity.
The success of the plaintiff in Hadeed may be related to the specific statutory scheme in Virginia, which allows service, including a subpoena directed to a witness, even though the parties may be based in another state. The commercial activity of the Yelp in the state strengthened this case for production.
The advertising agreement and choice of law or arbitration clauses did not bar this discovery because the plaintiff was not in a merchant relationship with Yelp, even though they had used to site to respond to negative ratings. The court also cited the Uniform Interstate Depositions and Discovery Act as an alternative means of discovery.
The case in Hadeed isn’t over though yet. The Public Citizen Litigation Group, a party to the trial decision as pro hac vice, has filed an appeal last week, urging the court to adopt the Dendrite-Cahill test.
One important practical consideration is the effect on rating sites themselves. Yelp refused to comply with this order while the appeal was being prepared, and was subsequently held in contempt (a finding that is also being sought to be reversed on appeal). Rating sites are unlikely to survive as businesses if they cannot offer at least some guarantee of identity protection for their users, especially if these are done in good faith by users complying with their Terms of Service.