A carpet-cleaning company may discover the identities of seven “John Does” who posted unfavorable reviews of the business on the Yelp social networking site; the Court of Appeals affirms a circuit court decision holding Yelp in civil contempt for refusing to comply with a subpoena duces tecum.
Yelp is a social networking site that allows users to post and read reviews on local businesses. Yelp does not require users to use their actual name or place of residence. It typically records the Internet Protocol (IP) addresses from which each posting is made. This information is stored in Yelp’s administrative database, which is accessible to Yelp’s custodian of records in San Francisco. Yelp employs a proprietary algorithm to filter potentially less reliable reviews, which are moved to a separate page that a user can access by clicking on a filtered reviews link at the bottom of a business listing.
Plaintiff business filed suit against the authors of seven specific critical reviews. Plaintiff alleged it tried to match the negative reviews with its customer database but could find no record that the negative reviewers were actual customers of plaintiff. Plaintiff alleged the negative comments were defamatory because they falsely stated that plaintiff had provided shoddy service to each reviewer. Yelp objected to the subpoena from plaintiff; ultimately, the circuit court found Yelp in contempt for failure to respond to the SDT and imposed a monetary sanction of $500 and $1,000 in attorney’s fees.
On appeal, Yelp argues the First Amendment requires a showing of merit on both the law and facts before a subpoena to identify an anonymous speaker is enforced. Yelp also argues the circuit court lacked jurisdiction to subpoena its documents.
An Internet user does not shed his free speech rights at the log-in screen. The right to free speech is assiduously guarded in all mediums of expression, from the analog to the digital. Where, as here, speech constitutes an expression related solely to the economic interests of the speaker and its audience, any First Amendment right to speak anonymously enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression.
Yelp argues the First Amendment requires a showing of merit on both the law and the facts before a SDT to identify an anonymous speaker is enforced. This is an issue of first impression at the appellate level in the commonwealth, and neither the U.S. Supreme Court nor the 4th U.S. Circuit Court of Appeals has addressed this issue. Instead of applying the standard set forth in Va. Code § 8.01-407.1, which sets forth the standard for discovering the identity of persons communicating anonymously over the Internet, Yelp argues we should adopt standards enunciated in Dendrite Int’l Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Sup. Ct. App. Div. 2001), and progeny.
Virginia is one of many jurisdictions to develop its own unmasking standard, Code § 8.01-207.1, adopted in 2001. This statute provides a procedure that must be followed when a person files a subpoena seeking information about the identity of an anonymous individual that engaged in Internet communications that are allegedly tortious or illegal.
We decline to declare Code § 8.01-407.1 unconstitutional. We cannot identify a clear, palpable, and free from doubt infirmity. We hold that Code § 8.01-407.1 provides the path of analysis that a circuit court must follow when determining whether to enforce a SDT seeking the identity of an anonymous communicator. Here, it is clear the circuit court complied with the requirements of Code § 8.01-407.1 in determining whether to enforce the SDT seeking the identity if the Doe defendants. We hold the circuit court did not abuse its discretion in enforcing the SDT.
Concurrence & dissent
Haley, S.J.: I concur with the majority: 1) that the trial court had subpoena jurisdiction over Yelp and 2) that Code § 8.01-407.1 provides a procedural and substantive path of analysis for determining the propriety of issuing an unmasking SDT which constitutionally balances the First Amendment protection of an anonymous speaker and the right of redress for defamation.
In oral argument before this court, plaintiff candidly admitted it cannot say the John Doe defendants are not customers until it obtains their identities.
Under the facts in this case, the balance envisioned by Code § 8.01-407.1 should weigh for the protection afforded by our Constitution. I would reverse the trial court finding of civil contempt and quash the subpoena duces tecum.
Yelp Inc. v. Hadeed Carpet Cleaning Inc. (Petty) No. 0116-13-4, Jan. 7, 2014; Alexandria Cir.Ct. (Kemler) Paul A. Levy for appellant; Raighne C. Delaney for appellee; Kevin M. Goldberg for appellant amici Reporters Committee for Freedom of the Press, et al. VLW 014-7-001, 27 pp.