Paul Levy, over at Public Citizen, has an interesting discussion of a recent decision by the Virginia Supreme Court in a case (Yelp v Hadeed Carpet Cleaning) involving the right to speak anonymously.
Hadeed is a large carpet-cleaning and carpet-repair business operating throughout the DC metropolitan area. It has been the target of a large number of negative reviews on Yelp (and on Angie’s List and other consumer sites as well), and it filed a defamation action in Virginia state court against seven John Doe defendants alleging that they falsely represented themselves as Hadeed customers when posting negative reviews regarding Hadeed’s carpet cleaning services on Yelp. It then served a subpoena on Yelp, seeking information in its possession regarding identification of the person or persons responsible for the postings. [Yelp users must register to be able to post reviews; in the registration process, users must provide a valid email address, and are encouraged (though not required) to provide their actual names. In addition, Yelp typically records the IP Address from which each posting is made.]
Yelp refused to comply with the subpoena and was held in contempt, and it appealed to the VA court of appeals (which affirmed the contempt order) and then to the VA Supreme Court.
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The question presented is an important one: what showing should a plaintiff have to make before it may be granted access to the subpoena power to identify an anonymous Internet user who has criticized the plaintiff? If the right to speak anonymously is constitutionally protected – as I (and many others) believe – then the bar can’t be set too low, for that would enable the unmasking of anonymous speakers whenever unhappy recipients or targets of the communications have the resources to get into court. On the other hand, if the bar is set too high, unscrupulous defamers and misrepresenters get a free pass.
It’s a tricky problem, trying to balance the right to obtain redress from the perpetrators of civil wrongs against the right of those who have done no wrong to remain anonymous. As I’ve argued before (e.g here), the constitutional right to speak anonymously is going to be a critical battleground over the next several years or decades, as it comes under increasing pressure from private rights-holders and law enforcement surveillance. Many states have adopted the so-called Dendrite test (and Public Citizen’s litigation group deserves much of the credit for helping to establish this), which basically requires a judge faced with a demand for discovery to identify an anonymous Internet speaker to: (1) provide notice to the potential defendant and an opportunity to defend his anonymity; (2) require the plaintiff to specify the statements that allegedly violate his rights; (3) review the complaint to ensure that it states a cause of action based on each statement and against each defendant; and most importantly (4) require the plaintiff to produce evidence supporting each element of his claims.
The case was one of first impression in Virginia – but the Virginia court declined to address the question, choosing instead to dismiss Yelp’s contempt citation on narrower jurisdictional grounds (holding that the VA statute in question does not authorize courts to issue subpoenas to non-resident non-parties, even if it might be able to assert personal jurisdiction over them). Good for Yelp, but too bad for the development of the law – though I’m sure a similar case in the proper jurisdictional posture will come before the VA court before long.
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