Yelp Ordered To Identify User Accused of Defaming a Tax Preparer (bloomberg.com)

mi writes: California State Appeals Court ruled this week that Yelp can't shield the identify of an anonymous reviewer who posted allegedly defamatory statements about a tax preparer. "The three-judge appeals panel in Santa Ana agreed with Yelp that it could protect the First Amendment rights of its anonymous reviewer but it still had to turn over the information," reports Bloomberg. "The panel reasoned that the accountant had made a showing that the review was defamatory in that it went beyond expressing an opinion and allegedly included false statements."

Comments

So in other words...

[erp_consultant]

anonymous comments can no longer be considered truly anonymous. Got it.

Re:So in other words...

[Anonymous Coward]

If you reveal your identity to someone in order to post a comment, then you really shouldn't expect to be beyond the reach of the law. You need to be logged in to post a Yelp review, so *obviously* you're not *really* anonymous.

But seriously, the line between free speech and defamation isn't really that hard to navigate. You can be pretty offensive without libeling anyone.

"This advisor is a worthless waste of space. He is personally obnoxious, morally repugnant, mentally negligible and physically repulsive. Merely by breathing he pollutes the good clean air of his city; in a just world, he would have been aborted and his mother done penance for conceiving him." - This is completely fair comment, protected speech. Nobody can sue you for posting this.

"This advisor told me I could still file a XD-426 two days late and it would still be accepted" - now that is an alleged statement of fact, not an opinion, and you damn' well better be able to back it up.

Re:So in other words...

[Aighearach]

Anonymity is a goal, it is not something you can declare.

Just like a secret is not a thing that you told people not to tell anybody; that's only an attempt at secrecy. If it is actually secret depends on if they actually tell anybody.

So for example a legally-protected Trade Secret, you have to keep it secret. It only protects you if somebody violates the law (including civil law, such as a contract) in disclosing it. But if you forget to make somebody sign an NDA and they tell everybody, guess what? It stopped being a secret as soon as you told them!

A lot of people believe, "If I can't see them, they can't see me" and so when they go online, they think they're anonymous; after all, they can't see any of the people with access to their activities!

If you don't want your publisher to be exposed to lawsuits intending to unmask your identity, don't tell your publisher your identity! In this case, that would mean both lying about your name, and also using a VPN.

Personally, if I say your business sucks online and you want to sue me over it, I wouldn't want to hide behind anonymity, I'd want to roast you in the media for it really hard. People don't like it when businesses do that, it is very bad PR!

Re:So in other words...

[Wrath0fb0b]

That is the standard only for libel of a "public figure" or on a matter of public importance like a political issue. The justification (whether legit or not, although I confess it makes sense to me) is that there is a heightened interest in discourse about public officials rather than you local dentist. There is also the notion that public official have voluntarily placed themselves in the discourse, whereas private individuals minding their own private business have not.

For regular-ole-dentist-libel, you only need to prove that the statement is false and that the person was negligent. You do not need to prove that the alleged libeler knew the statement was false, nor do you need to prove "actual malice".

Re:So in other words...

[MrL0G1C]

Damn, I didn't realise laptops had gotten so cheap, so what costs more, the laptop or the coffee?

Think about it.

[Anonymous Coward]

Suppose you have someone who starts making up negative things about you and posting them on a website. This happens *all the time* IRL.

A small business can lose massive amounts of money because an employee's ex-boyfriend leaves lies online about the business, for example. That's not protected speech under the First Amendment--it may even be a violation of a restraining order. This can lead to people losing their jobs, to businesses shutting down, to additional stress on victims of domestic violence, and to customers being helped by people who are less good at the job, for example.

That's an extreme example but not a very unusual one.

Reviewers who leave their opinions and factual statements about their experience with a business need to be protected under the First Amendment. But someone who just checks the anonymous box to make up lies deserves to be unmasked.

Re:Think about it.

[ClickOnThis]

The First Amendment protects you and me from the government. It does not protect you and me from each other.

If you say something about me I don't like, I can sue you. Of course, whether I win is another matter.

Re:Think about it.

[Anonymous Coward]

Somewhat incorrect. The First Amendment is why lawsuits for defamation, libel, slander, etc. are difficult to win even if the statements made were false. Of course, that also means that you have a lot of latitude to respond in kind and give as good as you got.

Re:Think about it.

[Wrath0fb0b]

The First Amendment protects you and me from the government. It does not protect you and me from each other. If you say something about me I don't like, I can sue you. Of course, whether I win is another matter.

You should read the Supreme Court's opinion in Gertz v. Robert Welch, Inc.. In summary, it says that to comply with the 1A, States cannot impose strict liability on libel/defamation lawsuits.

In fact, the very first sentence of the opinion is about the interaction between the 1A and defamation.

This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort.

TLDR of the opinion: States can have libel laws, but to comply with the 1A, they have to structured so the plaintiff proves at least negligence in addition to the falsehood. The Court decided in other places that there is an even higher standard for speech about a "public figure", but Gertz is the lower bar for suits by private individuals.

Intent of amendment

[datavirtue]

What do they want? Free speech or anonymity? Free speech can exist in either case but shit falls out when people know who you are after saying something in public. Perhaps we are talking about amendment 1.5...the one that guarantees us anonymity?

Re:Intent of amendment

[ClickOnThis]

The First Amendment protects your right to express an opinion. But IMHO, it does not protect your ability to express that opinion anonymously.

IANAL, and YMMV. Perhaps the courts find legal reasons to conceal some parts of a person's identity in certain situations (e.g., to keep them from harm) but a person accused, slandered, or libeled must be provided the ability to confront the witness against them.

Re:Intent of amendment

[Anonymous Coward]

Freedom of speech is not the freedom to defame. We have a system for handling defamation, and it seems to be working here.

SCOTUS disagrees with your opinion

[Anonymous Coward]

"Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society."

Free Speech does Not Equal Anonymity

[X!0mbarg]

Just because you are allowed to say it, does not mean you can hide behind anonymity to protect your sorry self from the backlash of what you said.

Sure, you have the right to you opinion. Just claim it as yours, and yours, and face the response. If you have somehow broken the law in the expression, then accept it!

Don't be a coward.

Re:Free Speech does Not Equal Anonymity

[Opportunist]

Anonymity serves a very important purpose. Without it, a vocal majority can easily pretend that "everyone" agrees with their position and an opposing position does not exist. You can have that in totalitarian regimes all the time. If all you hear all the time is how great The Party is (with everyone saying as much as "but..." disappearing), you can easily get the impression that "everyone" but you thinks that this is the case. This is what props up those regimes.

Anonymity allows you to actually speak out against this and tell the world that there are people who do not agree with this position. And this in turn allows people to understand that they are not alone in their dissent.

Re:pretty easy to prove

[drinkypoo]

This is why it's far better, especially when leaving a poor review online, to actually only state the facts as they happened which drew you to come to such a negative perception about them, leaving aside any personal feelings about them,

No, you are just wrong. You are entitled to your opinion, and if all you post is opinion with no alleged facts, then you are protected. This user's information is being subpoena'd because they made comments of a factual nature which the dentist is claiming to be false. They did not get in trouble for opinion words, they got in trouble for fact words, and your comment bears no resemblance to reality nor relevance to this case.

Re:Hopefully

[Bruinwar]

After some digging to find the actual review, it seemed fairly tame to me. The reviewer should have a copy of the tax-return that was "sloppy" & a copy of the one they had completed by another firm, maybe it will prove the review to be accurate.

The review:

Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.

Re:pretty easy to prove

[UnknowingFool]

This is what I think the review in question was:

Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.

Now we're just left with he-said-vs-she-said for the quoted price. Good luck proving that the reviewer didn't believe the original quote.

No one has to prove the "belief" of the reviewer. The accountant merely has to show that the reviewer was presented with a quote. It would be better for accountant if the reviewer signed the quote therefore acknowledging that the reviewer agreed with the quote.

"Yes, I asked about X, and he said 'about $Y', but then he charged me $2Y dollars." then the tax preparer immediately loses his case,

In what scenario of "he said, she said" would one party immediately lose a case after making a claim? The reviewer can claim his side of the story and the accountant can claim his side. Both have an opportunity to present evidence. For example if the accountant has email or texts from the reviewer saying that they wanted to file certain forms (which would cost more) then the accountant has a case that the reviewer agreed to increase the cost by having more work done.

and he's going to get counter-sued for a lot more than $2Y (think: court costs + tort claim).

In what scenario would that happen? A person can sue and get counter sued but there are more limits to a counter sue. The tort claim you imagine does not happen in most cases.