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Anonymous Yelp Users Face Identity Disclosure

(CN) - Yelp must identify seven anonymous reviewers who left negative reviews for a carpet-cleaning business, a Virginia appeals court ruled.

With approximately 102 million unique visitors every month, the Yelp website allows users to post and read reviews of local businesses. Anyone who posts a review is required to have actually been a customer of the business in question, pursuant to Yelp's Terms of Service.

To review a business on Yelp, a user must register and provide Yelp with a valid email address. While Yelp does not require users to register with their real name, it records the IP address of every user who posts.

In July 2012, Yelp displayed 75 reviews of Hadeed Carpet Cleaning in Alexandria, Va., a number of which were negative.

After finding no record that the reviewers were actual Hadeed customers from a review of its customer database, Hadeed claimed that the negative reviews were false and defamatory.

The business sued the John Doe authors of seven critical reviews and subpoenaed Yelp to learn the identities of the anonymous reviewers. Yelp repeatedly refused to respond to it, however, leading the trial court to hold Yelp in contempt.

On Tuesday, the Virginia Court of Appeals agreed, 2-1, that Yelp must identify the users accused of defamation.

While "an internet user does not shed his free speech rights at the log-in screen," the right to speak with anonymity is not absolute, Judge William Petty said for the majority.

The Virginia Legislature has developed a detailed six-step test, codified at Section 8.01-407.1, for anyone seeking to uncover the identify of an anonymous internet user. The court rejected calls to find the law unconstitutional, saying "we cannot identify a clear, palpable, and free from doubt infirmity."

"Generally, a Yelp review is entitled to First Amendment protection because it is a person's opinion about a business that they patronized," Petty wrote. "But this general protection relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, in that the reviewer was never a customer of the business, then the review is not an opinion; instead, the review is based on a false statement of fact - that the reviewer is writing his review based on personal experience. And 'there is no constitutional value in false statements of fact.'"

Hadeed demonstrated that the reviewers' identity is crucial to its case, and it has good-faith basis for its belief that the reviews are defamatory.

"Without the identity of the Doe defendants, Hadeed cannot move forward with its defamation lawsuit," the 27-page opinion states. "There is no other option. The identity of the Doe defendants is not only important, it is necessary."

Judge James Haley dissented, writing, "A business subject to critical commentary, commentary here not even claimed to be false in substance, should not be permitted to force the disclosure of the identity of anonymous commentators simply by alleging that those commentators may not be customers because they cannot identify them in their database."

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