Court Rules Against Online Anonymity

cstacy writes "The Virginia Court of Appeals has ruled (PDF) that people leaving negative feedback for a carpet cleaning service are not allowed to remain anonymous. Yelp must unmask seven critics to the carpet cleaner, who feels that they might not even be real customers."

Comments

Appropriate Supreme Court Quote

[Chris Mattern]

"Anonymous pamphlets, leaflets, brochures and even books
have played an important role in the progress of mankind.
Persecuted groups and sects from time to time throughout
history have been able to criticize the oppressive practices
and laws either anonymously or not at all... It is plain
that anonymity has sometimes been assumed for the most
constructive purposes."

    --Hugo Black, Tally v. California, 1960

Re:Appropriate Supreme Court Quote

[k6mfw]

that was back in 20th century when the US had a Constitution and three branches of govt for checks and balances.

Re:Appropriate Supreme Court Quote

[Anonymous Coward]

Libel has never been a constitutional right. If someone makes a libelous statement, hiding behind anonymity, then the other party is free to investigate who made the statement. No company's terms of service can override the law.

Re:Appropriate Supreme Court Quote

[i kan reed]

Shhh, you're ruining their carefully cleaned memory of a perfect past. Less than a decade after "I have lists!" McCarthy hearings either.

Re:Appropriate Supreme Court Quote

[SJHillman]

"No company's terms of service can override the law"

I see you're new here. Welcome to America!

Re:Appropriate Supreme Court Quote

[Desler]

That's interesting nostalgia. The 20th century was chock full of Constitutional abuses by Congress, the executive branch, state and local enforcement, etc. Especially if you were a minority, a woman, a member of a political party disliked by those in power, gay, or part of a niche religious sect, etc.

Re:Appropriate Supreme Court Quote

[Entropius]

Just because thing A used to be better doesn't mean that thing B used to be better too. Can't we look at the past and say "This was good, but that was bad"?

Re:Appropriate Supreme Court Quote

[Wordplay]

"Constitutionality? Yes, but the 20th Century also had Chewbacca. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!"

We're better in some ways now...and a lot worse in others. At least then, when a governmental abuse came to light it tended to actually cause an effect. Nowadays, it's just blown off as business as usual.

Re:Appropriate Supreme Court Quote

[i kan reed]

Sure, but the point of k6mfw's post was that "the constitution" were secured in the past, and it really wasn't in any meaningful way.

Re:Appropriate Supreme Court Quote

[geekoid]

If someone was using anonymity to harm you, would you not have the right to find out who that person is?

Re:Appropriate Supreme Court Quote

[naasking]

That quote refers to anonymity from the government. It's not clear that anonymity whem commenting on corprations or people have the same protections due to libel laws.

Re:Appropriate Supreme Court Quote

[Uberbah]

LOL. During the 60s the CIA, NSA and FBI were flagrantly abusing their powers and authority. Never learned about the Church Committee?

LOL, you think that was just in the 60's? One of the primary purposes of the FBI has always been to divide, persecute, and prosecute what passes for "left" in this country.

Re:Appropriate Supreme Court Quote

[DRJlaw]

"Generally, a Yelp review is entitled to First Amendment protection because it is a
person's opinion about a business that they patronized. See Tharpe, 285 Va. at 481, 737 S.E.2d
at 893. But this general protection relies upon an underlying assumption of fact: that the reviewer
was a customer of the specific company and he posted his review based on his personal
experience with the business. If this underlying assumption of fact proves false, in that the
reviewer was never a customer of the business, then the review is not an opinion; instead, the
review is based on a false statement of fact -- that the reviewer is writing his review based on
personal experience. And "'there is no constitutional value in false statements of fact.'" Id.
(quoting Gertz, 418 U.S. at 340).

Here, Hadeed attached sufficient evidence to its subpoena duces tecum indicating that it
made a thorough review of its customer database to determine whether all of the Yelp reviews
were written by actual customers. After making such a review, Hadeed discovered that it could
not match the seven Doe defendants' reviews with actual customers in its database. Thus, the
evidence presented by Hadeed was sufficient to show that the reviews are or may be defamatory,
if not written by actual customers of Hadeed. Moreover, Hadeed sought the subpoena duces
tecum under the legitimate, good faith belief that the Doe defendants were not former customers,
and, therefore, their reviews were defamatory."

    -- William G. Petty, this case. 2014.

Re:Appropriate Supreme Court Quote

[CppDeveloper]

I had the same initial reaction then I actually read the article...

It is not as clear cut as it seems. The man is able to map most commenters to identified customers but the seven identified in the suit are exceptions. His contention is that they are NOT customers and are making fraudulent statements bringing it under libel law instead of free speach. Apparently he was able to provide convincing evidence to the judge.

Re:Appropriate Supreme Court Quote

[Charliemopps]

I would juxtapose that with the advertisements these very same businesses often use with "Fake" customers (actors) that claim how great the service is on television and on the radio. If the business is allowed to make False statements of fact regarding the quality of their services and have it protected by the first amendment, how can the public be denied the same right? I do not see how this is any different that the very same businesses fraudulent claims in advertising.

Re:Appropriate Supreme Court Quote

[plover]

How dare you question the legitimacy of my spokesperson in a lab coat? I'll have you know that was a Genuine Lab Coat. Genuine.

Re:Appropriate Supreme Court Quote

[Unordained]

Whether the reviews are true or not may very well depend on the identity of the supposed reviewer. If it's in the form of "they destroyed my carpet", the cleaning service could either try to prove that this has not happened to any customers ever, or that this review did not come from a customer to whom it actually happened. If it's not a real customer, then it's probably a competitor, and at that point, it's very much libel -- purposefully spreading lies for the purpose of damaging someone else's reputation. Reviews like this really do matter to a small business. If they reveal the identities and discover it was a real customer and a real experience, there's nothing legally they could do to remove it, because it wouldn't be libel, and would be protected. But they also can't do anything about it now, until they prove it's false, which requires them to reveal identities.

The alternate solution might be for all review systems to say "this review is anonymous [better: not a verified identity], so the person being reviewed really has no opportunity to face his accuser, so you should take this with a really big grain of salt". And maybe not even count it in the averaged star-rating. And then you've just killed their business model, because the identity/registration stuff is such a hurdle.

Re:Appropriate Supreme Court Quote

[Artifakt]

So, since the US constitution is not yet three centuries old, you're advancing the bold claim that there have been at least two things some people somewhere consider abuses? That's really a statement about as novel and insightful as "The sky is up". I find your sig ironic in a non-Morissetteian sense.

Re:Appropriate Supreme Court Quote

[Unordained]

Defamation laws, as far as I see, only cover the negatives, not the positives. You can have all the fake praise you like, as long as there's no fake complaint. Statements of "our service is great" are not the same as "my experience was terrible" -- there's an expectation that vague statements from a company may be misleading (bluster) while not really wrong in a verifiable sense, but with specific customer stories, we expect them to be accurate, fact-based. Ads may use actors, but they generally have fine-print identifying them as interpretations of, re-enactments of, or syntheses of multiple, actual customer letters.

Re:Appropriate Supreme Court Quote

[Obfuscant]

I would juxtapose that with the advertisements these very same businesses often use with "Fake" customers (actors)

"Actor portrayal" or "paid endorsement". The FTC has this covered.

But now, do you have proof that this carpet business hires people to pretend to be customers in ads? If not, then you are condemning them for something they did not do.

I do not see how this is any different that the very same businesses fraudulent claims in advertising.

You have now made a formal accusation of fraudulent advertising against a specific company. You further use this unsupported allegation as proof that their competitors should be able to lie about this company anonymously with impunity in a direct attempt at damaging the business.

The quotes above from the case are spot on. They show a company that has made best effort to discover the truth of the anonymous claims on their own and are seeking information about only seven "people" who have made allegations, much as you have, that cannot be substantiated without knowing who they are. Libel is not protected speech. End of story.

Re:Appropriate Supreme Court Quote

[celle]

" If this underlying assumption of fact proves false, in that the
reviewer was never a customer of the business, then the review is not an opinion; instead, the
review is based on a false statement of fact -"

    Except this is opinion and no opinion is fact, just factual. Opinions aren't facts, that's why they're opinions. The whole thing is a strawman to unmask anonymous commentors who have every right to say whatever they want so they can be harassed by the business into giving up their right to speak. And a civil suit is still a government sponsored response to speech someone doesn't like, a clear violation of the first amendment, libel or not. If business are allowed do this then every business should be nailed for the false advertising they dump on the public all the time. Anonymity has been used for good and bad since before this country was founded and has proven necessary to a free state.

Re:Appropriate Supreme Court Quote

[naughtynaughty]

There is no evidence that they were not customers, he simply claimed he was not able to identify them as customers. As someone who was once sued in Texas by a scummy publicly traded company for my alleged to be defamatory comments I posted online about their pumped up and soon to collapse revenue, I can assure you that companies can and do lie in their assertions to the court. In my case the intent, plain as simple, was to stifle public discussion of the company so investors could continue to be bamboozled by glowing press releases. The case was tossed out of court because they had no jurisdiction over me in Texas so we didn't get to the point of having to prove it was a SLAAP suit with no substance. And the company's stock soon collapsed as it became obvious that they were in fact exactly what I and others were asserting that they were. While I am sympathetic to a company being defamed online, I think we need to give great deference to the right of people to anonymously speak out. There is no even playing field in most cases, companies tend to have more money than the average consumer and if criticism is met with a lawsuit it serves to chill speech to a substantial degree.

Re:Appropriate Supreme Court Quote

[Charliemopps]

Ok, lets check them out then:
C- with the BBB
34 complaints, 2 unresolved
http://www.bbb.org/washington-dc-eastern-pa/business-reviews/carpet-and-rug-cleaners/hadeed-carpet-cleaning-inc-in-alexandria-va-9331/

Here's one of their commercials, seemingly libeling every other carpet cleaner in the area:
http://www.youtube.com/watch?v=Jmr3F2bmyyc

Here's some fake customers, and no "Paid actors" warning:
http://www.youtube.com/watch?v=24KaJugEcSE

So again, if they can lie about how good they are, lie about how bad everyone else is, then why can't other people lie about how bad they are?

I think Libelous speech should be protected, despite the supreme courts previous rulings.

Re:Appropriate Supreme Court Quote

[Bacon Bits]

Defamation laws, as far as I see, only cover the negatives, not the positives.

Defamation covers the negatives. Fraud and false advertising covers the positives. If testimonials or endorsements are made then they are regulated. You can't legally advertise a false testimonial.

Re:Appropriate Supreme Court Quote

[Obfuscant]

So again, if they can lie about how good they are, lie about how bad everyone else is, then why can't other people lie about how bad they are?

They can. They just can't do it anonymously for the reason I'll elucidate in a second.

I think Libelous speech should be protected, despite the supreme courts previous rulings.

You've got to be kidding. So if I make up scandalous lies about you that cost you your job and your wife and maybe gets you some prison time for good measure, there's nothing you should be able to do about it?

Of course I expect now you'll say that by "protected" you'll mean there can't be limitations on saying something but there can be "consequences" that would be a deterrent to people speaking in the first place. Well, that's what this case also says. The anonymous posters weren't prevented from speaking, but there may be consequences -- which requires knowing who said it so the consequences can be applied.

Oh, by the way, you'll note that this case revolves around commercial speech, upon which different standards apply that are fully constitutional.

Re:Appropriate Supreme Court Quote

[brainboyz]

I wouldn't say that, the hot little brunette number was explosive.

Re:Appropriate Supreme Court Quote

[Kazoo the Clown]

It also had J. Edgar, COINTELPRO, Watergate, MkUltra, a bunch of fun stuff that wasn't quite consistent with the Constitution. Sometimes when looking back selective memory gives the impression things were better than they were.

Re:Appropriate Supreme Court Quote

[webheaded]

If you do this, NO ONE will want to post there. Just saying. I wouldn't want to post reviews if it required me to reveal my actual identity to the public. Fuck that. There's a reason I don't use my real name as my screen name.

Re:Appropriate Supreme Court Quote

[Sabriel]

Fire!

Re:Appropriate Supreme Court Quote

[Uberbah]

Until the left became right.

Until you started confusing actual political stances for party labels.

Then they started persecuting the "right" who believe in limited government and a smaller state.

Do you have any smarter friends who could help you with this whole trolling thing, cuz you kinda suck at it.

And thus ends Yelp.

[Kenja]

Since the whole point is to give unbiased feed back and the chance of repercussions by definition creates a bias, that's more or less the end of that.

Re:And thus ends Yelp.

[i kan reed]

Don't worry, you can still find information about businesses that have gone under, details about restaurants including everything but their hours and prices, and reviews marked "most helpful" consisting solely of the phrase "I liked it"

Re:And thus ends Yelp.

[wiredlogic]

The whole point of Yelp is to collect negative reviews so they can get paid to remove them.

Re:And thus ends Yelp.

[Anonymous Coward]

Can't support that enough. Here in Germany, they bought a local competitor, and suddenly all the positive reviews disappeared unless you pay for an "advertisement package".

Re:And thus ends Yelp.

[mythosaz]

There's pretty much four types of reviewers on Yelp, in pretty much this order or volume:

1) The semi-professional Yelp reviewer. He's writing yelp reviews for every last thing he does.
2) Shills, inflating their companies and friends, and leaving crap for competitors.
3) Guys who got a toenail in their lunch who made an account to complain.
A distant 4) People who had a great meal who felt a need to share.

If you know this, you can still read between the lines and make informed reviews.

Re:And thus ends Yelp.

[mcgrew]

Right, and since now posting negative reviews can get you sued, what will happen?

What's getting these reviewers sued isn't negative reviews, but negative comments about a product they may have no experience whatever with. From TFA:

The Virginia Court of Appeals agreed this week, ruling that the comments were not protected First Amendment opinions if the Yelp users were not customers and thus were making false claims.

You have no 1st amendment right to spread lies about me. If I write a negative review of a product I've never seen, that's libel. If I write a negative review of something I actually used, I'm in the clear.

Re:And thus ends Yelp.

[suutar]

Nah, it makes sense. It comes out, roughly, to "I do not regret ignoring high yelp ratings when deciding where to go"

Re:And thus ends Yelp.

[retchdog]

Sure, but the legal system usually requires the plaintiff to show harm in order to have standing. Is there harm in a false positive review? Maybe to a competitor, or to the class of Yelp users, but it's much harder to argue for a case.

This is by design. It's a justice system, not a legislative system.

Yes, there are exceptions where standing is automatic, but they don't apply here yet and would need be legislated.

Re:And thus ends Yelp.

[YumoolaJohn]

But consider it from another perspective

That perspective is utterly worthless; freedom and privacy are what's important. The fact that such a thing could be abused doesn't mean that anonymity shouldn't be allowed in such cases. Now all you have to do is accuse anonymous reviewers of not being customers to remove what little anonymity they have.

Waiting to review

[MiniMike]

Is there a place on Yelp to review the Virginia Court of Appeals?

Re:Waiting to review

[tomhath]

More importantly, is there a place on Yelp to review Yelp?

Re:Waiting to review

[plover]

+++++ 5 bars, will no doubt be asked to stay again.

1st Amendment doesn't protect libel, but...

[natarnsco]

I bet Mr. Hadeed would have been better off ignoring the comments, or offer discounts for positive reviews to outweigh the negatives. Streisand Effect and all.

The door swings both ways

[Rik Sweeney]

Does this mean that people leaving positive feedback should also be unmasked?

Seriously, I completely avoid any service that has all 4/5 and 5/5 stars because in real life at least one person would find fault with it.

Re:The door swings both ways

[Anonymous Coward]

4/5 - Great!

Wonderful hotel, friendly staff and nice clean room. Would visit again!
7/4/01

5/5 - Enjoyed thoroughly

Breakfast was delivered to my room at no extra cost, that's what I call service!
12/06/01

1/5 - Noisy surroundings

Was trying to have a lie in, and all of a sudden there was this awful bang outside and lots of screaming, shouting and police sirens. Hotel needs better windows, won't visit again.
9/11/01

Re:The door swings both ways

[SJHillman]

My biggest peeve is the idiots who have reviews like "Just got X Product, haven't opened it yet." or "I just ordered X Product. Can't wait for it to get here" or "I ordered a different product from a different company and it's great/horrible so this one is too!". And then they rate it with either the minimum or maximum value.

I can kind of see it

[Chirs]

If I'm a small business owner, I don't want my competitors to be submitting fake negative reviews against me.

It might make sense to have both named and anonymous reviews, with the anonymous ones grouped separately. Then the viewer can decide which ones to look at.

Re:I can kind of see it

[SJHillman]

But then what's to keep the named reviewers from just using a pseudonym? Bob's Donut Emporium could log in as Leroy Notaperson and bash Big Joe's Donuts, Hair Care and Tire Center.

Re:I can kind of see it

[schneidafunk]

I agree. I see a lot of people talking about free speech and quoting the constitution, but ignoring libel & defamation. Being able to speak anonymously as a whistleblower or protester is one thing; ruining the reputation of a person or business with falsehoods is quite another.

Chicken Sh*ts

[Anonymous Coward]

Have the balls to stand behind your comments. If you wouldn't say it in front of a crowd, don't say it. Whomever said the Internet was anonymous has no idea what the start of the Internet was like - with email directly to your computer.

Re:Chicken Sh*ts

[Rik Sweeney]

Oh, the irony!

Escrow of sorts

[gumpish]

If the goal of the unmasking is to determine whether the Yelp complainers were actual customers (as the fine article states) couldn't the judge be provided the names of the Yelpers and the list of Mr. Hadeed's customers and make that determination without revealing their identities to Mr. Hadeed or the public at large? (I'm not saying it's morally or legally correct for anyone to know the identity of the Yelpers, but this would seem preferable to telling Mr. Hadeed who the complaining customers were, enabling him to harrass them.)

Re:Escrow of sorts

[Anonymous Coward]

A critical post on the internet is not the same thing as a criminal accusation.

Re:Escrow of sorts

[bstuff]

Usually it is marked as attorney's eyes only under a protective order. The attorneys are not allowed to disclose it to their client, but can compare the client information with the attorney's eyes only information.
If the information goes beyond the attorneys, then the attorneys get in trouble. See the Apple v. Samsung case for example.
See, e.g., CNN at http://tech.fortune.cnn.com/2013/10/03/apple-samsung-sanctions-grewal/

The court could protect the reviewers privacy and

[Registered Coward v2]

still determine if the are real or not. Have Hadeed turn over his database to Yelp's lawyers and let them match the reviewers. For those that don't match then Yelp turns over the names. This wouldn't be much different then when a court allows discovery but places safeguards in place to ensure only truly relevant information is revealed. That way, fake reviews are unmasked and Hadeed can decide if he wants to take action against them.

Re:negative feedback?

[SJHillman]

A few companies, at least in New York, have gotten in trouble for fake positive reviews.

http://www.theguardian.com/world/2013/sep/23/new-york-fake-online-reviews-yoghurt

Re:Yelp? They should have ruled against 4Chan!

[i kan reed]

From my primitive understanding, the "bug-out" plan for anonymous is simply to go to another chan, like 420chan and take over, until that server is taken down too.

This all is predicated on the flawed understanding that anyone gives a shit about 4chan.

Let me know how that works for ya

[pla]

people leaving negative feedback for a carpet cleaning service are not allowed to remain anonymous. Yelp must unmask seven critics to the carpet cleaner

That presumes Yelp actually knows their real identity. Good luck with that.

BTW, as a word of advice for any company hoping to sanitize its online image - When I search for product reviews, if I find nothing but positives, I consider that worse than a legitimately mixed bag of pros and cons... Or even more laughable, tossing in some pathetic token "cons" that complain about your product just working too well: "After trying a handful of wimpy competitors, I thought I could easily handle the awesome power of SpleemCo(tm)'s Widget Frobulator, but it had me scared to go past 60%! For pros only, guys!"

How About Protecting Consumers

[organgtool]

The judge seems very worried about protecting businesses from false negative reviews but how about protecting consumers from false positive reviews? Does this mean that shills are required to use their real names as well (at least in Virginia)?

Shill Reviews

[Jason Levine]

I used to work on a review site a decade ago (which is forever in Internet terms). At the time, I processed all reviews by hand to weed out spam submissions. (The site was small enough to allow this at the time. Obviously, looking back, it wasn't a scalable solution.) Along with spam submissions, I'd occasionally get a wave of positive reviews for products. These reviews would have similar wording and would invariably come from the same IP address. After a decade, I'm sure the shills have gotten less obvious about their glowing product/service reviews so I don't envy people who need to weed the shills out from the actual reviews.

The other side of this coin is that people could submit negative reviews that weren't earned whether out of spite for unrelated company actions (e.g. I don't like the founder's political stance so I'll post that his business's service stinks) or as a method of unfair competition (e.g. If we ruin their rating on Yelp, our competing carpet cleaning business will pick up). I can understand a business being afraid of phony negative reviews hurting their reputation. That being said, the names shouldn't be released to the business itself but to a third party who would also get the business' customer list and could compare them to weed out anyone who wasn't a customer. This third party would be forbidden from revealing the real names of the Yelp users - or the business' customer list - to anyone and would only report back which online screen names were not customers.

In fact, I'd go so far as to say that the court is setting up a huge legal risk. Let's, for a second, accept the following as true:

The Virginia Court of Appeals agreed this week, ruling that the comments were not protected First Amendment opinions if the Yelp users were not customers and thus were making false claims.

Now let's say Yelp releases the names of these 7 commenters and none were customers. Fine, no rights violated. (Again, for the moment, we're accepting the court's ruling.) However, if at least one of those comments came from an actual customer, then those people's rights will have been violated. The court has basically stated that no rights will be violated by assuming an outcome where no rights are violated. (Circular reasoning at its finest!)

"Court Rules Against Online Anonymity" my *ass*!

[kheldan]

That's an unnecessarily sensationalist headline if I ever saw one. Slashdot editors get modded down to "-1, Troll" for that so far as I'm concerned. Some random court making a ruling concerning one single website does not a huge controversy make.

Give him a mask...

[Petron]

Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth.
        -Oscar Wilde

Re:Give him a mask...

[TrollstonButterbeans]

Oscar Wilde: "Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth."

On the internet, if you give him a mask "he will start trolling".

Re:Skynet

[Anonymous Coward]

4chan run's itself.

KNOCK IT OFF. LEARN TO APOSTROPHE.

Filter error: Don't use so many caps. It's like YELLING. - yes, no shit, Slashdot. It was meant to be yelling.

Re:Papers please comrade ...

[jedidiah]

The notion of libel is based on the idea of doing some "harm" to the aggrieved party. The damage to reputation from a few unsatisfied customers or even SHILLS pales in comparison to what this company is doing to itself.

Attacking customers? That's like a reputation self-nuke.

Forget about "libel".

This company clearly deserves to die in a fire of it's own creation.

Virginia does a fine job protecting privacy

[davide marney]

See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-407.1 for the Virginia law on unmasking anonymous users in a civil trial. I can't find anything objectionable in it at all, it seems very fair. If someone damages your reputation anonymously and it comes to court, the court must be able to find the actual persons involved if they are to make a judgment. Yelp tried to get the VA court to reject its own code and adopt the unmasking rules of other states, and they got turned down. If you read all the way to the end of the ruling, you'll see in fact that the dissenting judge dissented not on the fact that the code shouldn't have been followed, but that it wasn't followed _enough_ in his opinion.

Re:Papers please comrade ...

[westlake]

You do not have the right to not identify yourself.

Lies and malice are profoundly corrupting. They degrade free speech. Silence free speech That is why we have laws against libel. That is why anonymity can never be absolute,

Compromise

[kaizendojo]

Allow anonymous comments, but then let NON anonymous member/moderators decide whether they are full of shit or not. You know, like we do here.