As we have discussed in our Social Media Handbook, user-driven websites such as Yelp typically are not required to divulge user information in response to discovery requests in litigation. Courts have outlined strict standards for unmasking users’ identities, often citing the First Amendment rights to anonymous free speech. Although certain speech, like defamation, is not protected by the First Amendment, courts have been wary of “new breed” defamation lawsuits that, in the view of those courts, are designed to silence anonymous speakers rather than redress a substantive injury.
A recent decision of Virginia’s intermediate appellate court bucks the prevailing trend. In that case, Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 0116-13-4 (Va. Ct. App. Jan. 7, 2014), the court held that Yelp was required to identify seven users who criticized a carpet cleaning service in online reviews but where the service offered declaration evidence that it could not match the criticisms to actual customers. Some plaintiffs’ attorneys are already claiming that the ruling reflects a new willingness by courts to force companies to reveal user information in pursuit of damages.
That conclusion seems hasty. Significantly, the Hadeed Carpet decision rests on Virginia’s unique anonymous content statute. Under Virginia Code § 8.01-407.1, a plaintiff need only demonstrate a “legitimate, good faith basis to contend” that anonymous content is tortious. No other state has enacted a similar statute, and courts in other jurisdictions have required evidence of all other essential facts that suffice to prove the elements of a defamation claim before unmasking anonymous users. See, e.g., SaleHoo Grp., Ltd. v. ABC Co., 722 F. Supp. 2d 1210 (W.D. Wash. 2010); USA Techs., Inc. v. Doe, 713 F. Supp. 2d 901 (N.D. Cal. 2010); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Dendrite Int’l, Inc. v. Doe, 775 A.2d 756 (N.J Super. Ct. App. Div. 2001).
Whether or not Hadeed Carpet will remain good law in Virginia, there is little reason to think that its reasoning will be adopted by courts in other jurisdictions that do not have similar statutes.