WASHINGTON, January 17, 2014 — What is a good business to do when an anonymous creep with a vendetta takes to the Internet with false and defamatory reviews?
What about the creep’s First Amendment rights protecting free speech?
Opinions, even if harmful to a business, are protected. So the business can do nothing.
But, what if the statements are false? In order to be legally protected, the statements made must be true.
Americans love to complain, thus, consumer review forums abound. Writing a consumer review is a form of speech absolutely protected under the First Amendment.
When the review consists of false and defamatory statements, these are not protected, and in many instances businesses are filing defamation lawsuits. Moreover, the writer could be subject to criminal charges and sanction.
Recently, in Virginia, Hadeed Carpet Cleaning filed a defamation lawsuit, naming seven “John Does” as defendants. In order to proceed, Hadeed needed the true identities of these seven individuals. Hadeed researched its records, analyzed the comments and when they were posted, and concluded none of the seven could have been customers. Indeed, if these reviews were not written by customers, these reviews would not be opinions, but completely false and defamatory, and thus actionable statements.
Yelp did not want to disclose the identities. Disclosure was hotly contested. Yelp wanted to protect their site’s participants. Hadeed believed it had the right to pursue litigation following made-up reviews that were detrimental to its business.
Anonymous speech has been a well-established pillar in our country’s First Amendment history. The Supreme Court has often upheld the right to speak anonymously, holding in a 1960 case that “anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.”
In an affirming decision in 1995, the Supreme Court said “under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.”
In the Hadeed case, the Virginia Court of Appeals noted that free speech “does not disappear at a website’s log-in screen,” but that “the right to speak anonymously is not an absolute one. Defamatory speech is not constitutionally protected”.
The VCA ruled that Yelp must disclose the posters’ identities. Hadeed complied with Virginia’s statute that required it show that notice was given to the defendant through the Internet service provider, that the subject speech is, or may be tortious or illegal, and that its efforts to identify the defendant failed.
Yelp says it is going to appeal.
The Hadeed case is a representative case in the evolving laws about anonymous speech and the role of the courts in deciding those laws. There was a time when someone could write a letter to a newspaper editor, and the writer’s identity was truly, forever, anonymous.
Now, with few exceptions, when something is posted anonymously on the Internet, there is always someone who can identify the poster. Yelp has all posters’ email addresses and Internet service providers have information. All of these “links” in the chain of identity are subject to a subpoena. When the subpoenaed entity chooses to resist, courts will have to decide if disclosure of “anonymous” will be required.
Virginia’s Court of Appeals decided the Hadeed case on constitutional grounds, based on Virginia’s statute, which did not require a showing that the statements caused actual harm. As written, the statute requires someone seeking disclosure of “anonymous” provide a “good faith basis … (only) that defamatory statements were made.” Other jurisdictions, including Delaware, Maryland, Washington, D.C., Arizona, California, Texas, New Hampshire, and Indiana, require supporting evidence in order to unmask the identities of Internet anonymous posters.
Moving to potentially more serious consequences, privacy laws do not protect anonymity when criminal charges are filed.
Seventeen states have criminal libel laws for web defamation.
Defamation is any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.
Depending upon how a customer “review” is worded, it might subject the speaker to criminal defamation.
The Yelp reviews about Hadeed included comments from “Bob” that he was ripped off, from “Chris” that his rugs shrunk, and from “J8” that he was charged for work that was never performed.
Bob’s and J8’s comments could be construed to be more than attacks on the carpet cleaning business. They could be seen as direct attacks on an individual (Bob is stating Hadeed stole from him, a crime, and J8 is stating Hadeed committed a crime by stealing his money). Common examples of defamation include accusations of criminal acts, marital infidelity, dishonesty or stating that someone has a sexually transmitted disease.
Once a targeted comment or review is identified as criminal defamation, the door leading to requiring disclosure is opened widely. Applications to lift the blanket of anonymity for criminal prosecution typically get granted much more quickly than those connected to civil or money damages lawsuits. One of Google’s mottos is “Do No Evil” and they routinely cooperate with law enforcement to help prosecute alleged criminals by introducing their users’ searches as evidence.
In Colorado criminal libel is a felony punishable by up to 18 months in prison and a fine of up to $100,000.00 for the first offense. Florida, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia, Washington, and Wisconsin all have criminal libel laws.
Ultimately, if courts can craft a fair standard, which would include balancing the competing interests of free speech and protection from defamation on a case-by-case basis, the law will serve the best interests of all. Know, by the way, that if a court orders you to be found, you will be found.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is available to speak to your group on numerous legal topics.