An Important Customer Review Issue Swept Under The Carpet

Is there a right to be “anonymous” when posting customer reviews? The U.S. Constitution supports “anonymous pamphleteering,” but defamatory speech falls outside of First Amendment protections. So, what is a negative online customer review? Pamphleteering or defamation?

In Yelp! Inc. v. Hadeed Carpet Cleaning, Inc., Hadeed, an owner of a cleaning service believed that negative reviews were authored by a non-customer, so he invoked Virginia's “unmasking statute” that addresses anonymous communications that may be “tortious or illegal.” Va. Code §　8.01-407.1. He needed to find out who authored the scathing articles on Yelp! So, he subpoenaed Yelp! to produce documents in order to obtain the full name, gender, birthdate, IP address or email address of the authors of the reviews in question.

Yelp! refused to comply and the circuit court held Yelp! in contempt. Yelp! appealed, and the Court of Appeals affirmed the contempt holding. 752 S.E. 2d 554, 62 Va. App. 678 (Va. Ct. App. 2014). Yelp! then appealed to the Virginia Supreme Court. Those who follow the law of customer reviews were excited to see what the court would say in this case. Many amicus briefs were filed by interested parties seeking to protect the anonymity of customer reviews, and the Constitutional arguments were front and center in those briefs.

On April 16, the Virginia Supreme Court reversed and vacated the contempt order. So, Yelp! won. It did not need to disclose the author names. However, unfortunately, the holding was based on jurisdiction...