In e-commerce, user reviews can make or break a business. Review sites such as Yelp are a double edged sword for merchants and service providers: on one hand satisfied customers can generate buzz about the company and bring in new customers, and on the other hand dissatisfied customers can use it as a very public platform to air their grievances and discourage new business.
Review sites such as Yelp maintain policies protecting users’ anonymity, a major source of frustration among business owners. By remaining anonymous, users can make potentially defamatory statements and leave the businesses with little recourse to hold the individuals accountable. A recent ruling by the Virginia Supreme Court has demonstrated the long and tortured road that businesses must take to challenge the anonymity of these unnamed users.
In 2012 a small Virginia company, Hadeed Carpet Cleaning Inc., brought suit against unnamed Doe defendants for allegedly defamatory statements published about Hadeed on the Yelp review website. According to Hadeed, a number of negative reviews did not match up to records of the company’s existing customers, and therefore the company suspected that the false statements were published by individuals who had never used the company’s services. The Circuit Court for the City of Alexandria, Virginia, issued a subpoena to Yelp requiring it to provide identifying information about the anonymous users. Yelp refused to comply, and the Circuit Court held Yelp in contempt.
Yelp appealed, arguing that the court’s order violated the First Amendment by forcing the company to identify the anonymous users. In January 2014 the Court of Appeals upheld the Circuit Court’s order, applying a six-prong procedure Virginia’s “unmasking statute,” which provides that the court may issue a subpoena to unveil the identity of an individual speaking anonymously over the internet where (1) notice of the subpoena was served on the anonymous speaker through his internet service provider, (2) the plaintiff has a legitimate, good faith basis to contend that communications may be tortious or illegal, (3) other efforts to identify the speaker have been fruitless, (4) the identity of the communicator is important, (5) there is no pending motion challenging the viability of the lawsuit, and (6) the entity to whom the subpoena is addressed is likely to have responsive information.
The Court of Appeals noted that Hadeed had followed the proper procedure in requesting the subpoena. The court found that the company’s evidence that the reviews did not match customer records was sufficient to establish they were not published by actual customers of the company, and were therefore likely to be false.
Yelp appealed the Circuit Court decision to Virginia’s Supreme Court. Last month, the Virginia Supreme Court issued an anticlimactic ruling dismissing the case on jurisdictional grounds, stating that the case should have been brought in California where Yelp is headquartered and where the responsive records are located.
If Hadeed chooses to resume the case in California, if will face a somewhat higher burden in obtaining the names of the users. Notably, Virginia is the only state in the country to have enacted an unmasking statute. In most states, the courts will no issue a subpoena until the plaintiff has established a prima facie case for defamation—significantly more than the “legitimate, good faith basis” used in Virginia.
The U.S. Court of Appeals for the Sixth Circuit is currently hearing an appeal of a district court decision, which if upheld would have enormous ramifications for freedom of speech and the online service provider safe harbor under the Communications Decency Act (CDA).
TheDirty.com is a website run by Nik Lamas-Richie. The site allows users to submit gossip about anyone or anything and the site currently features hundreds of thousands of comments on a wide range of topics and users can also freely post comments on stories that are published on the website. Lamas-Richie then selects some of the user posts, and sometimes adds a little commentary to the user submission, which he then posts to the site. Sarah Jones, a former Cincinnati Bengals cheerleader, was featured twice on TheDirty.com including allegations that she was promiscuous and that she had a sexually-transmitted disease.
Jones then sued TheDirty.com and Lamas-Richie alleging defamation, libel and invasion of privacy. The first trial resulted in a hung jury, but in the second trial in July a jury of eight women and two men in a Kentucky federal court awarded Jones $338,000 in damages.
Typically, cases involving claims like Jones’ against websites are quickly dismissed under the CDA, which provides websites immunity from third party content. TheDirty.com filed a pre-trial motion to dismiss the case on the basis that the suit was barred by the CDA that was rejected by the district court, which held that the CDA did not offer protection because “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site.” The court reasoned that since the site served to encourage the comments then it was not entitled to immunity under the CDA. The CDA typically immunizes providers of interactive computer services against liability arising from content created by third parties if the provider is not also responsible in whole or in part or the creation or development of the offending content.
In August, after the jury verdict, the judge wrote a supplemental opinion reiterating the views expressed in the earlier opinion. In particular Judge William Bertelsman said that because Richie “played a significant role in developing the offensive content such that he has no immunity under the CDA.”
Richie appealed the decision to the Sixth Circuit, arguing that the case should have been dismissed because the CDA immunizes liability for users’ comments. Congress enacted the CDA to encourage website owners to actively screen, review, and moderate third party posts and to allow website operators to have the ability to remove offensive content when necessary without fear of liability. Richie argued that under the CDA website operators are free to edit, alter, or modify user-created content without losing immunity, as long as their edits do not materially alter the content’s original meaning.
Four separate amicus briefs were filed with signatories that included many of the biggest names on the Internet including Facebook, Google, Amazon, Microsoft, Yahoo, Twitter and eBay. The briefs argue that the district court ruling wrongly interpreted the CDA and that the consequences of upholding the district court’s decision would be enormous. The amicus brief submitted on behalf of Google, Facebook and others states that aspects of the district court decision “significantly depart from the settled interpretation of [the CDA] and, if adopted by this Court, would not only contravene Congress’s policies as declared in the statute, but also introduce substantial uncertainty regarding a law that has been a pillar for the growth and success of America’s Internet industry.” \
This case will be closely watched because of the far reaching consequences it would have if the district court ruling imposing liability of the website is upheld. A ruling from the Sixth Circuit that affirmed the district court’s ruling could chill the operation of online businesses that are open for users to create content. There is a long line of cases that have held that conduct similar to TheDirty.com’s in this case is protected by the CDA, but a decision from the Sixth Circuit finding TheDirty.com liable would uproot the well-established jurisprudence under the CDA.