Dangerous Ruling In Virginia Allows Cleaning Company To Identify Anonymous Yelp Critics

from the getting-it-wrong dept

Last year, we wrote about a troubling case in Virginia, in which a cleaning company, Hadeed Carpet Cleaning, sued seven anonymous Yelp reviewers in an attempt to discover who they were. Hadeed did not dispute the contents of the negative reviews, but rather said that, comparing the information to their own database, they could not identify the reviewers, and thus believed that they might not actually have been customers. Thus, Hadeed claims, the reviews would be defamatory since they didn't actually represent the experiences of actual customers. Yelp fought back on behalf of its users, pointing out that the First Amendment protects anonymous speech. Yelp pointed out that 11 different states had adopted the so-called Dendrite rules concerning the high bar necessary to force a company to reveal anonymous commenters. The basic idea is that you need to really show that the law has almost certainly been broken before you can identify the individuals.

Unfortunately, the Virginia state court of appeals has decided that it won't follow those rules, but rather will follow a Virginia state law that may be a bit out of date and (much worse) that it will interpret that law to have a very low bar, thus requiring Yelp to identify the commenters just because Hadeed Carpet Cleaning has "a good faith basis" to believe that the comments were defamatory. That's a very low bar, and allows for all sorts of mischief by those looking to unmask anonymous critics. There is a brief dissent in the case, in which one of the judges on the panel notes that, while he agrees that Virginia's law is the important one, he's troubled by the claim that Hadeed had a "good faith" basis, noting that the law requires "reasonable efforts... needed to advance the claim" but that in court Hadeed's lawyer simply said they really "don't know whether that person is a customer or not...." It would seem like "well, we just don't know" is not exactly a "good faith belief" that they were not a customer and that the comment is defamatory. Unfortunately, the majority of the court didn't seem to understand this point.

Yelp is apparently considering appealing the decision. But, at the very least, this may lead to the Supreme Court eventually having to weigh in on a better standard for protecting anonymous speech.

Filed Under: anonymity, dendrite, first amendment, free speech, reviews, virginia
Companies: hadeed carpet cleaning, yelp

Yelp Fights Back Against Carpet Cleaning Service That Sued Anonymous Critics For Defamation

from the good-for-yelp dept

We've seen plenty of lawsuits involving people upset about Yelp reviews, but here's a fairly extreme case. Apparently, a DC-area carpet cleaning service named Hadeed Carpet Cleaning, which is somewhat infamous in the area for its "pervasive advertising" and direct mail coupons promising a $99 cleaning special, does not have the greatest reputation on Yelp. The key issue: apparently that $99 deal is often not honored. Also, there are multiple reviews of people getting a quote, dropping off a carpet, and then being told later if they want the carpet back they have to pay much more -- with various excuses being offered as to why they're charging more than the quote.

Hadeed then decided to sue seven anonymous reviewers for defamation. Here's the oddity: Hadeed does not appear to be suing them over the contents of the bad review. In fact, the company doesn't seem to dispute the various complaints about its pricing practices. Rather, it argues that it could not match these seven reviewers to actual customers within its database, and therefore, the reviewers are defaming them by misrepresenting that they were ever Hadeed customers. Hadeed appears to suggest that they reviews were really written by a competitor.

As we've discussed, many courts have adopted the so-called Dendrite rules for identifying anonymous speakers. The rules require giving the anonymous users a chance to respond and (more importantly) require the plaintiff to present enough evidence to prove there's an actual case. However, the court in Virginia chose to not apply any such rules, but rather allowed a subpoena to Yelp ordering it to identify the posters. Yelp has refused, and the court ordered compliance, which Yelp again refused, leading to the court saying Yelp was in contempt.

Public Citizen has now filed a brief on behalf of Yelp with the appeals court, arguing both that the Virginia court had no jurisdiction over Yelp, a California company, and that Yelp was correct to ignore the order since the First Amendment (which protects anonymous speech) requires much more proof before an anonymous speaker can be revealed.

When pervasive advertisements from a local merchant feature prices that seem to be just too good to be true, they may, in fact, not be the price that the average consumer will pay. Dozens of consumers who have used pseudonyms to post about their experiences with appellee Hadeed Carpet Cleaning, Inc. (“Hadeed”) on the popular website www.yelp.com, maintained by appellant Yelp Inc. (“Yelp”), report that Hadeed routinely fails to honor the advertised discount prices. Hadeed’s responses to several consumers on Yelp suggest that it recognizes the problem; yet its complaint for defamation singles out the authors of seven reviews posted on Yelp that say the same thing as the other online detractors of Hadeed and its sister business, Hadeed Oriental Rug Cleaning. Based on that allegation, Hadeed invoked the court’s subpoena power to strip its pseudonymous critics of their First Amendment right to speak anonymously.

The main question on this appeal—an issue of first impression at the appellate level in Virginia—is whether the trial court applied the proper legal standard in overriding the anonymous speakers’ First Amendment rights. Courts elsewhere have recognized that, given the valuable role played by the First Amendment right to speak anonymously in encouraging ordinary people to express themselves fully, it is necessary to balance that right against a plaintiff’s right to seek redress for wrongful speech by adopting a standard requiring a plaintiff to do more than articulate a good faith belief that the speech “maybe tortious.” Before stripping the defendant of a First Amendment right, these courts take an early look at the merits of the plaintiff’s claim to determine whether a valid claim has been alleged and whether there is a prima facie evidentiary basis for that claim. In this appeal, Yelp urges Virginia to adopt the same approach, and to remand this case to give Hadeed an opportunity to pursue its subpoena by meeting the proper standard.

In the meantime, though, we have yet another case of a company suing over Yelp reviews -- which just makes me wonder how they ever expect to get more customers. Any company that sues over online reviews someone makes is clearly a company not worth doing business with, since they might, potentially, sue you over any bad review you write online about them.

Filed Under: anonymity, carpet cleaning, defamation, dendrite, disclosure, privacy, reviews
Companies: hadeed carpet cleaning, yelp

Courts Can't Ignore Free Speech Concerns Just Because Someone Claims Copyright Infringement

from the free-speech-is-important dept

A couple months ago, we wrote about a troubling ruling by a magistrate judge in California, ordering the identification of an anonymous internet user, who had spoken out against a cult. As we've noted, many courts have recognized that anonymity is protected by the First Amendment. And, while not universally accepted, many courts have adopted the so-called Dendrite rule for determining when its appropriate to identify an anonymous speaker. This test is a good one, which requires the party seeking to identify an anonymous speaker to both give the speaker sufficient notification to protest being identified, but also to present significant evidence to prove that the speaker broke the law.

Unfortunately, thanks to the RIAA, there's a "competing" ruling when it comes to copyright. Some users had tried to be kept anonymous in a file sharing case, and the court there rejected that attempt, but by using a much lower standard that almost guarantees anonymous speakers would be identified (known as the "Sony Music" standard, since Sony was the lead plaintiff in the case that set the standard). In this case, the plaintiffs pushed to use the much lower standard to identify the anonymous speakers, by claiming that part of the problem was copyright infringement in their blog posts. The magistrate judge agreed. However, thanks to a rapid attempt to get the court to reconsider (via both the anonymous plaintiff and Public Citizen, the ACLU and EFF), district court judge Lucy Koh reversed the ruling by the magistrate judge, and made it clear that even in copyright cases, we shouldn't just throw out the right to be anonymous.

The ruling by Judge Koh is quite good, detailing the right to be anonymous and the First Amendment concerns that must be taken into account, even in copyright cases. The court seems to correctly recognize that the kind of "speech" here is different than just someone downloading a song. Most people would agree that there's no First Amendment right to be anonymous for downloading. But when the "infringement" is done as part of an effort to speak out publicly about an issue, it seems much more reasonable to use the much higher bar to identify the speaker, and that's exactly what the court said. For purely consumptive infringement, perhaps it's reasonable to have a lower barrier to identification. But in cases of expression, the courts should be careful not to just toss out one's right to be anonymous. The court recognized this, pointing out that there are real First Amendment concerns when the use is expressive:

Contrary to Plaintiff's assertions, evidence of copyright infringement does not automatically remove the speech at issue from the scope of the First Amendment. While "the First Amendment does not shield copyright infringement," Harper, 471 U.S. at 555-56, "copyright law contains built-in First Amendment accommodations." Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003). Perhaps the most important is the doctrine of fair use, which allows the public to use copyrighted works "for purposes such as criticism, comment, news reporting, teaching ... and scholarship." .... In this case, the Court has acknowledged that "Skywalker appears to have published the [protected materials] ... as part of a larger effort to debunk the notion that the Art of Living Foundation and Ravi Shankar possess some 'secret higher knowledge.'" Id. Although the Court need not determine at this stage if Skywalker's conduct is protected by fair use, the circumstances here create a substantial question as to whether the doctrine applies.... The Court therefore finds that even if Skywalker's speech is not "political" or "religious," as he has argued, it at least raises significant constitutional issues.

Judge Koh didn't just stop there. She also went on to discuss the serious potential chilling effects of identifying anonymous speakers using claims of copyright infringement:

Conversely, Sony Music made no mention of the chilling effect of disclosure. Of course, this makes sense, given that the conduct at issue had little First Amendment value. However, because disclosure of Skywalker's identity here could discourage other bloggers from engaging in lawful, critical speech, the Highfields/Perry analysis is more likely than Sony Music to focus the Court on striking the proper balance between competing interests.

It's nice to see at least some judges recognizing that while infringement is not protected speech, there's all sorts of legitimate speech that can be stopped by copyright law, and we shouldn't just ignore the First Amendment when copyright and the First Amendment come into conflict.

Filed Under: anonymity, copyright, dendrite, free speech

Should Anonymity Be Dealt With Differently In Copyright Cases Than In Defamation Cases?

from the protecting-anonymity dept

We've talked in the past about how important it is, under the First Amendment, to protect anonymity. Courts have stated, time and time again, that the ability to speak anonymously is part of what's protected under the First Amendment. That doesn't mean that the right to anonymity is universal, but that for anonymity to be removed, certain standards must be met. For the most part, the law around this issue has sprung up around a variety of cases concerning defamation by anonymous people. From there, standards have been built over what it takes to unveil the speaker behind anonymous comments. While not universally accepted, it's becoming pretty widespread that courts will use "the Dendrite rule" to establish if anonymity can or should be removed from speech. Dendrite has five guidelines for judges:

(1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity.

These seem to be pretty good guidelines that create a fair framework for a court to work from to make sure that anonymity isn't taken away when it doesn't make sense. But should this only apply to defamation cases? Paul Alan Levy points us to a case in which a plaintiff is using a copyright claim to expose some anonymous bloggers, getting around the Dendrite rules by pointing to a ruling in one of the RIAA's lawsuits against file sharers, in which a court set forth a much lower barrier for identifying anonymous users.

While you might state that copyright infringement shouldn't give anyone anonymity, where this gets a bit trickier is what kind of "infringement" we're talking about. If it's purely "consumptive" infringement (downloading songs or whatnot), I can certainly understand the idea that protecting anonymity probably doesn't make much sense. If it's not purely consumptive, but communicative, speech that is infringing, then there are trickier questions. But here's the thing: the Dendrite rule appears to cover both adequately. If it's just someone downloading (or uploading) some music tracks, run through the Dendrite rules and it seems pretty clear that any judge will say it's reasonable to get rid of the anonymity.

But in a case (such as the lawsuit in question) in which ex-members of a religion are trying to expose things they don't like about that religion, there are definitely reasons why a judge might want to think twice before simply allowing the unveiling of the speakers. But, in this case, a magistrate judge did not -- simply relying on that precedent from the RIAA case to use a much, much lower standard in copyright cases to wipe out anonymity. As Levy shows, the "Sony" standard (from the RIAA case, which was technically, and only technically, from Sony Music), has the deck stacked almost entirely against anonymous speech. The Dendrite test requires multiple requirements to be met. The "Sony test" has a series of factors, almost all of which are inherently weighted against anonymous speech, and the test doesn't "require" any specific factors be met, but rather let's the judge "weigh" the different pieces, which are already tilted on the scale towards removing anonymity.

But that's what happens when people don't recognize the unintended consequences of rulings such as the original Sony ruling. It seems "easy" to make up such a test when dealing purely with consumptive infringement. But now that the same test is being used to unveil speakers who are speaking out against a religion, it should raise serious questions about the appropriateness of such a test. The Dendrite rules are proven and do allow for the protection of anonymous speech -- but also can allow for anonymity to be removed, through a careful process, if requirements are met. It seems that the same test ought to apply in copyright cases as well.

Filed Under: anonymity, copyright, defamation, dendrite, first amendment, free speech

Judge Orders Unmasking Of Wikipedia Users; Fails To Follow Standard Anonymity Protections

from the dendrite-me dept

Over the years, we've covered tons of lawsuits about attempts by people to uncover the identity of anonymous critics. Frequently, the aggrieved parties figure out some way to file a defamation lawsuit and use that to uncover the name of the person in question, without much interest in actually going through the rest of the legal proceedings. Judges tend to be a mixed bag on this issue, with many judges recognizing a strong First Amendment free speech value in allowing anonymous speech. In fact, many are (finally) coalescing around the "Dendrite" rules, which outline the conditions under which anonymous online users can or should be identified. The Dendrite hurdle is pretty high, and for a good reason: because anonymity is important.

However, it appears that a magistrate judge in Colorado who admitted he was unaware of the Dendrite case or the associated "rule," decided to just ignore it once being informed of it, and went forward with an order to unmask some anonymous Wikipedia users who the company Faconnable claimed defamed Faconnable. This is worrisome, and thankfully, Public Citizen is pushing back on this, highlighting the importance of protecting anonymity online. Thankfully, another court has put a stay on identifying the guy in question while this issue is hashed out, but it's still unfortunate how many judges are uninformed on issues they're ruling about.

Filed Under: anonymity, defamation, dendrite, wikipedia