A panel of judges in Alexandria, Va., heard an appeal today that will determine whether Yelp will have to reveal identifying information of anonymous commenters.
Hadeed Carpet Cleaning sued anonymous Yelp commenters in July 2012, alleging defamation and conspiracy to defame. Hadeed then subpoenaed Yelp seeking the names of those people, who had anonymously written negative reviews on the cleaning service’s Yelp profile.
The suit targeted authors of seven specific reviews, alleging that the authors were not actually Hadeed Carpet customers. Yelp’s Terms of Services and Content Guidelines require that reviewers are customers of the business they are reviewing.
Hadeed argued that the posts were false and defamatory because the company doesn't believe the anonymous posters were actual customers. However, the company did not argue that the substance of the postings were false. For instance, it did not deny that customers were occasionally charged more than the advertised price, as the reviews stated.
Yelp argued that revealing the identity of the anonymous posters violated their First Amendment right to speak anonymously and that the Virginia court lacked jurisdiction to subpoena documents from a California company just because that company had a registered agent in Virginia.
Yelp refused to comply with the subpoena and was found in contempt of court in January.
Judges James W. Haley Jr., William G. Petty and Robert P. Frank heard the appeal.
In oral arguments Wednesday, Judge Petty asked if Hadeed had provided sufficient evidence for the trial court to decide if what was said was defamatory.
Paul Levy, counsel for Yelp, argued that Hadeed did not offer any documentation and only made general allegations of defamation. He emphasized that forcing Yelp to turn over posters' identifying information could have a chilling effect on free speech on the Internet.
Levy added that a state statute regulating such subpoenas does not adequately protect First Amendment rights. The statute never set forth a standard on how to judge falsity and proof of merit in the case, he noted.
Raighne Delaney, counsel for Hadeed Carpet Cleaning, argued that Hadeed met the standard in the statute and that his client needed to know whether the commenters were customers before he could continue.
Delaney argued that they could not investigate the validity of the complaints without names. “We wouldn’t be here going to all this trouble fighting Yelp if we didn’t have a problem,” he said. He also argued that defamation is not protected speech.
It is unknown when the judges will rule on the case. The Reporters Committee filed a friend-of-the-court brief in support of Yelp.