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January 10, 2014

Protecting Consumer Free Speech in Virginia: A Fight We’ll Continue

Hadeed Carpet Cleaning

Earlier this week, the Virginia Court of Appeals announced a ruling that sets Virginia apart from other states when it comes to free speech rights for consumers.  

In this case, the owner of a Virginia carpet cleaning business argued that because he could not find in his customer database the screen names of some Yelp reviewers, their critical comments might be from a competitor rather than customers – ignoring the fact that these reviewers might have used pseudonyms to avoid the justifiable fear of retribution from the business. The owner did not dispute the underlying validity of the comments (shared by other reviewers), nor did he submit evidence to support his theories. Yet, without requiring any actual evidence that wrongdoing had occurred – or even any evidence that the reviews themselves were untrue – the Virginia appellate court ordered Yelp to disclose the identities of the reviewers.

This ruling would allow a business owner in Virginia to obtain identifying information – such as birthdates, email addresses and IP addresses – of individuals that wrote reviews about that business based not on evidence, but only on the speculation of the business owner that maybe these individuals were not customers, but unidentified competitors.

This decision fails to protect the First Amendment rights of Virginia consumers who are turning to sites like Yelp to share their experiences with local businesses. Protecting consumer free speech is paramount at Yelp, which is why we worked with Public Citizen to defend the identities of the reviewers in this case. The Washington Post and Gannett Co. joined our efforts to further protect free speech, as part of a supportive brief submitted by The Reporters Committee for Freedom of the Press. While the Virginia ruling is unfortunate, we plan to appeal and we’re optimistic about the future for protecting free speech online.

The good news is that the situation in Virginia is far from the norm throughout the rest of the country. Courts elsewhere have respected the First Amendment protection for citizens to speak anonymously – after all, consumers may feel the need to speak anonymously for privacy reasons or for fear of unfair retaliation by the business. Furthering these rights, many state and federal courts require actual evidence of a valid claim to be presented prior to disclosure of an individual's identifying information. For now, Virginia appears to disagree, as the court there chose the empty speculations of a business owner over the First Amendment rights of Virginia citizens.

This case highlights the need for stronger online free speech protection across the country, and is a reminder of why Yelp is fighting to expand the protections of consumer free speech and privacy in courts and legislative bodies across the country.

Litigation isn’t a very good substitute for customer service, and businesses considering using the courts as a weapon against their customers should think twice. Overreacting to a bad review can often make things worse, as most courts are quick to protect online reviewers in the face of intimidation. We plan to appeal the Hadeed ruling, and we will continue to fight for the protection and expansion of free speech for all internet users.