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Court Rules Against Online Anonymity 314

Posted by Unknown Lamer
from the turns-out-anonymous-coward-is-a-cat dept.
cstacy writes "The Virginia Court of Appeals has ruled (PDF) that people leaving negative feedback for a carpet cleaning service are not allowed to remain anonymous. Yelp must unmask seven critics to the carpet cleaner, who feels that they might not even be real customers."
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Court Rules Against Online Anonymity

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  • by Chris Mattern (191822) on Thursday January 09, 2014 @12:28PM (#45907217)

    "Anonymous pamphlets, leaflets, brochures and even books
    have played an important role in the progress of mankind.
    Persecuted groups and sects from time to time throughout
    history have been able to criticize the oppressive practices
    and laws either anonymously or not at all... It is plain
    that anonymity has sometimes been assumed for the most
    constructive purposes."

        --Hugo Black, Tally v. California, 1960

    • by k6mfw (1182893) on Thursday January 09, 2014 @12:31PM (#45907255)
      that was back in 20th century when the US had a Constitution and three branches of govt for checks and balances.
      • by Desler (1608317)

        That's interesting nostalgia. The 20th century was chock full of Constitutional abuses by Congress, the executive branch, state and local enforcement, etc. Especially if you were a minority, a woman, a member of a political party disliked by those in power, gay, or part of a niche religious sect, etc.

      • by jythie (914043)
        As long as we have had a constitution, people have been saying pretty much the same thing. People tend to forget that we have always had problems with the separation of powers and how to implement the constitution.... and in pretty much every decade you get people talking about how in the past it was respected but today it isn't. Crow, you see such arguments even in the 19th century.
      • It also had J. Edgar, COINTELPRO, Watergate, MkUltra, a bunch of fun stuff that wasn't quite consistent with the Constitution. Sometimes when looking back selective memory gives the impression things were better than they were.
    • by korbulon (2792438)

      Yeah but someone said we couldn't get a shitstain out of their paisley green shag carpets and THAT'S SIMPLY NOT TRUE.

      Take that, Constitution!

      • by Anonymous Coward on Thursday January 09, 2014 @12:40PM (#45907355)

        Libel has never been a constitutional right. If someone makes a libelous statement, hiding behind anonymity, then the other party is free to investigate who made the statement. No company's terms of service can override the law.

        • by SJHillman (1966756) on Thursday January 09, 2014 @12:46PM (#45907443)

          "No company's terms of service can override the law"

          I see you're new here. Welcome to America!

          • by gstoddart (321705)

            "No company's terms of service can override the law"

            I see you're new here. Welcome to America!

            It's not so much that they can't override the law, it's that the courts have determined that they're valid, and therefore lawful (even when unconscionable).

    • by geekoid (135745)

      If someone was using anonymity to harm you, would you not have the right to find out who that person is?

    • by naasking (94116) <naasking@gmail.c3.1415926om minus pi> on Thursday January 09, 2014 @01:12PM (#45907719) Homepage

      That quote refers to anonymity from the government. It's not clear that anonymity whem commenting on corprations or people have the same protections due to libel laws.

    • by DRJlaw (946416) on Thursday January 09, 2014 @01:38PM (#45908005)

      "Generally, a Yelp review is entitled to First Amendment protection because it is a
      person's opinion about a business that they patronized. See Tharpe, 285 Va. at 481, 737 S.E.2d
      at 893. 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.'" Id.
      (quoting Gertz, 418 U.S. at 340).

      Here, Hadeed attached sufficient evidence to its subpoena duces tecum indicating that it
      made a thorough review of its customer database to determine whether all of the Yelp reviews
      were written by actual customers. After making such a review, Hadeed discovered that it could
      not match the seven Doe defendants' reviews with actual customers in its database. Thus, the
      evidence presented by Hadeed was sufficient to show that the reviews are or may be defamatory,
      if not written by actual customers of Hadeed. Moreover, Hadeed sought the subpoena duces
      tecum under the legitimate, good faith belief that the Doe defendants were not former customers,
      and, therefore, their reviews were defamatory."

          -- William G. Petty, this case. 2014.

      • by Charliemopps (1157495) on Thursday January 09, 2014 @02:13PM (#45908547)

        I would juxtapose that with the advertisements these very same businesses often use with "Fake" customers (actors) that claim how great the service is on television and on the radio. If the business is allowed to make False statements of fact regarding the quality of their services and have it protected by the first amendment, how can the public be denied the same right? I do not see how this is any different that the very same businesses fraudulent claims in advertising.

        • by plover (150551) on Thursday January 09, 2014 @02:23PM (#45908719) Homepage Journal

          How dare you question the legitimacy of my spokesperson in a lab coat? I'll have you know that was a Genuine Lab Coat. Genuine.

        • by Unordained (262962) <unordained_slash ... @pseudotheos.com> on Thursday January 09, 2014 @02:50PM (#45909141) Homepage

          Defamation laws, as far as I see, only cover the negatives, not the positives. You can have all the fake praise you like, as long as there's no fake complaint. Statements of "our service is great" are not the same as "my experience was terrible" -- there's an expectation that vague statements from a company may be misleading (bluster) while not really wrong in a verifiable sense, but with specific customer stories, we expect them to be accurate, fact-based. Ads may use actors, but they generally have fine-print identifying them as interpretations of, re-enactments of, or syntheses of multiple, actual customer letters.

        • by Obfuscant (592200) on Thursday January 09, 2014 @03:01PM (#45909291)

          I would juxtapose that with the advertisements these very same businesses often use with "Fake" customers (actors)

          "Actor portrayal" or "paid endorsement". The FTC has this covered.

          But now, do you have proof that this carpet business hires people to pretend to be customers in ads? If not, then you are condemning them for something they did not do.

          I do not see how this is any different that the very same businesses fraudulent claims in advertising.

          You have now made a formal accusation of fraudulent advertising against a specific company. You further use this unsupported allegation as proof that their competitors should be able to lie about this company anonymously with impunity in a direct attempt at damaging the business.

          The quotes above from the case are spot on. They show a company that has made best effort to discover the truth of the anonymous claims on their own and are seeking information about only seven "people" who have made allegations, much as you have, that cannot be substantiated without knowing who they are. Libel is not protected speech. End of story.

          • by Charliemopps (1157495) on Thursday January 09, 2014 @03:42PM (#45909841)

            Ok, lets check them out then:
            C- with the BBB
            34 complaints, 2 unresolved
            http://www.bbb.org/washington-dc-eastern-pa/business-reviews/carpet-and-rug-cleaners/hadeed-carpet-cleaning-inc-in-alexandria-va-9331/ [bbb.org]

            Here's one of their commercials, seemingly libeling every other carpet cleaner in the area:
            http://www.youtube.com/watch?v=Jmr3F2bmyyc [youtube.com]

            Here's some fake customers, and no "Paid actors" warning:
            http://www.youtube.com/watch?v=24KaJugEcSE [youtube.com]

            So again, if they can lie about how good they are, lie about how bad everyone else is, then why can't other people lie about how bad they are?

            I think Libelous speech should be protected, despite the supreme courts previous rulings.

            • by Obfuscant (592200) on Thursday January 09, 2014 @04:26PM (#45910409)

              So again, if they can lie about how good they are, lie about how bad everyone else is, then why can't other people lie about how bad they are?

              They can. They just can't do it anonymously for the reason I'll elucidate in a second.

              I think Libelous speech should be protected, despite the supreme courts previous rulings.

              You've got to be kidding. So if I make up scandalous lies about you that cost you your job and your wife and maybe gets you some prison time for good measure, there's nothing you should be able to do about it?

              Of course I expect now you'll say that by "protected" you'll mean there can't be limitations on saying something but there can be "consequences" that would be a deterrent to people speaking in the first place. Well, that's what this case also says. The anonymous posters weren't prevented from speaking, but there may be consequences -- which requires knowing who said it so the consequences can be applied.

              Oh, by the way, you'll note that this case revolves around commercial speech, upon which different standards apply that are fully constitutional.

      • by celle (906675)

        " 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 -"

        Except this is opinion and no opinion is fact, just factual. Opinions aren't facts, that's why they're opinions. The whole thing is a strawman to unmask anonymous commentors who have every right to say whatever they want so they can be harassed by the business into giving up their right to

    • by CppDeveloper (829095) on Thursday January 09, 2014 @01:44PM (#45908073)

      I had the same initial reaction then I actually read the article...

      It is not as clear cut as it seems. The man is able to map most commenters to identified customers but the seven identified in the suit are exceptions. His contention is that they are NOT customers and are making fraudulent statements bringing it under libel law instead of free speach. Apparently he was able to provide convincing evidence to the judge.

      • by naughtynaughty (1154069) on Thursday January 09, 2014 @03:28PM (#45909659)
        There is no evidence that they were not customers, he simply claimed he was not able to identify them as customers. As someone who was once sued in Texas by a scummy publicly traded company for my alleged to be defamatory comments I posted online about their pumped up and soon to collapse revenue, I can assure you that companies can and do lie in their assertions to the court. In my case the intent, plain as simple, was to stifle public discussion of the company so investors could continue to be bamboozled by glowing press releases. The case was tossed out of court because they had no jurisdiction over me in Texas so we didn't get to the point of having to prove it was a SLAAP suit with no substance. And the company's stock soon collapsed as it became obvious that they were in fact exactly what I and others were asserting that they were. While I am sympathetic to a company being defamed online, I think we need to give great deference to the right of people to anonymously speak out. There is no even playing field in most cases, companies tend to have more money than the average consumer and if criticism is met with a lawsuit it serves to chill speech to a substantial degree.
    • by DaveV1.0 (203135)
      And, it is also plain that anonymity has sometimes been assumed for the most destructive purposes. Using anonymity to damage a rival's reputation is the later. And, reviewers are not a persecuted group or sect.
    • by jythie (914043)
      Yeah, but even then it was not a blanket protection against things like libel, slander, fraud, etc. If someone suspects their competition of planting false stories about them, they have always had tools to try to look into it. The question will be, how will this get balanced.
  • And thus ends Yelp. (Score:5, Interesting)

    by Kenja (541830) on Thursday January 09, 2014 @12:29PM (#45907219)
    Since the whole point is to give unbiased feed back and the chance of repercussions by definition creates a bias, that's more or less the end of that.
    • by i kan reed (749298) on Thursday January 09, 2014 @12:31PM (#45907261) Homepage Journal

      Don't worry, you can still find information about businesses that have gone under, details about restaurants including everything but their hours and prices, and reviews marked "most helpful" consisting solely of the phrase "I liked it"

    • by wiredlogic (135348) on Thursday January 09, 2014 @12:34PM (#45907277)

      The whole point of Yelp is to collect negative reviews so they can get paid to remove them.

      • by Anonymous Coward on Thursday January 09, 2014 @12:42PM (#45907387)

        Can't support that enough. Here in Germany, they bought a local competitor, and suddenly all the positive reviews disappeared unless you pay for an "advertisement package".

        • by Kenja (541830)
          Right, and since now posting negative reviews can get you sued, what will happen?
          • by mcgrew (92797) * on Thursday January 09, 2014 @01:59PM (#45908329) Homepage Journal

            Right, and since now posting negative reviews can get you sued, what will happen?

            What's getting these reviewers sued isn't negative reviews, but negative comments about a product they may have no experience whatever with. From TFA:

            The Virginia Court of Appeals agreed this week, ruling that the comments were not protected First Amendment opinions if the Yelp users were not customers and thus were making false claims.

            You have no 1st amendment right to spread lies about me. If I write a negative review of a product I've never seen, that's libel. If I write a negative review of something I actually used, I'm in the clear.

    • by DaveV1.0 (203135)
      Anonymity creates a bias for biased bad reviews, especially from competitors, shills paid by competitors, people who didn't get their way when said people were wrong, and griefers.
  • by MiniMike (234881) on Thursday January 09, 2014 @12:34PM (#45907283)

    Is there a place on Yelp to review the Virginia Court of Appeals?

  • I bet Mr. Hadeed would have been better off ignoring the comments, or offer discounts for positive reviews to outweigh the negatives. Streisand Effect and all.
    • by hubie (108345)
      I have no experience to speak for his company, but he has a pretty catchy jingle on the radio.
  • by Rik Sweeney (471717) on Thursday January 09, 2014 @12:36PM (#45907321) Homepage

    Does this mean that people leaving positive feedback should also be unmasked?

    Seriously, I completely avoid any service that has all 4/5 and 5/5 stars because in real life at least one person would find fault with it.

    • by Anonymous Coward on Thursday January 09, 2014 @12:41PM (#45907369)

      4/5 - Great!

      Wonderful hotel, friendly staff and nice clean room. Would visit again!
      7/4/01

      5/5 - Enjoyed thoroughly

      Breakfast was delivered to my room at no extra cost, that's what I call service!
      12/06/01

      1/5 - Noisy surroundings

      Was trying to have a lie in, and all of a sudden there was this awful bang outside and lots of screaming, shouting and police sirens. Hotel needs better windows, won't visit again.
      9/11/01

    • My biggest peeve is the idiots who have reviews like "Just got X Product, haven't opened it yet." or "I just ordered X Product. Can't wait for it to get here" or "I ordered a different product from a different company and it's great/horrible so this one is too!". And then they rate it with either the minimum or maximum value.

  • With this precedent set, Yelp transitions to a place where favourable reviews are posted and negative reviews quashed. This is about as useful as a phone book.

    • by SirGarlon (845873)

      Given the number of obviously fake reviews on Yelp, for it to become as useful as a phone book would be a huge step up.

  • by Chirs (87576) on Thursday January 09, 2014 @12:39PM (#45907343)

    If I'm a small business owner, I don't want my competitors to be submitting fake negative reviews against me.

    It might make sense to have both named and anonymous reviews, with the anonymous ones grouped separately. Then the viewer can decide which ones to look at.

    • But then what's to keep the named reviewers from just using a pseudonym? Bob's Donut Emporium could log in as Leroy Notaperson and bash Big Joe's Donuts, Hair Care and Tire Center.

    • by schneidafunk (795759) on Thursday January 09, 2014 @12:55PM (#45907527)

      I agree. I see a lot of people talking about free speech and quoting the constitution, but ignoring libel & defamation. Being able to speak anonymously as a whistleblower or protester is one thing; ruining the reputation of a person or business with falsehoods is quite another.

  • by Anonymous Coward on Thursday January 09, 2014 @12:41PM (#45907365)

    Have the balls to stand behind your comments. If you wouldn't say it in front of a crowd, don't say it. Whomever said the Internet was anonymous has no idea what the start of the Internet was like - with email directly to your computer.

  • Escrow of sorts (Score:5, Insightful)

    by gumpish (682245) on Thursday January 09, 2014 @12:42PM (#45907377) Journal

    If the goal of the unmasking is to determine whether the Yelp complainers were actual customers (as the fine article states) couldn't the judge be provided the names of the Yelpers and the list of Mr. Hadeed's customers and make that determination without revealing their identities to Mr. Hadeed or the public at large? (I'm not saying it's morally or legally correct for anyone to know the identity of the Yelpers, but this would seem preferable to telling Mr. Hadeed who the complaining customers were, enabling him to harrass them.)

    • Re: (Score:2, Insightful)

      by medv4380 (1604309)
      I seem to recall a right somewhere.. what was it... Something about the right to confront ones own accusers. Must be some communist or European thing.
      • Re: (Score:3, Informative)

        by Anonymous Coward

        A critical post on the internet is not the same thing as a criminal accusation.

      • Pretty sure that only applies in cases where the accusers are the ones pressing charges. Considering this is the exact reverse...
      • by KZigurs (638781)

        Expressing personal opinion about the quality of service on a site specifically designed to permit this service doesn't quite cut as an accusation.

        On the other hand, given some of rumoured yelp business practices (in particular if you refuse their suggestions to take care of the negative comments and listing ranking) this might have some interesting implications if the IP ranges of the comments turn out to be affiliated with yelp.

  • Maybe in the future, all we'll see in online reviews is, "Fast, neat, average, friendly, good, good."
  • by Registered Coward v2 (447531) on Thursday January 09, 2014 @12:45PM (#45907435)
    still determine if the are real or not. Have Hadeed turn over his database to Yelp's lawyers and let them match the reviewers. For those that don't match then Yelp turns over the names. This wouldn't be much different then when a court allows discovery but places safeguards in place to ensure only truly relevant information is revealed. That way, fake reviews are unmasked and Hadeed can decide if he wants to take action against them.
  • Who said that Yelp knows who I really am?
  • So with this precedence would the judge rule it illegal if I 'heard' that one brand of tractor was better than another but couldn't remember the exact source?

    Of course if you run a business and people randomly post crap about it for no reason it sucks; but it sucks in person too. If someone randomly tells me to never to shop at Sears, oh well.
  • by pla (258480) on Thursday January 09, 2014 @01:01PM (#45907603) Journal
    people leaving negative feedback for a carpet cleaning service are not allowed to remain anonymous. Yelp must unmask seven critics to the carpet cleaner

    That presumes Yelp actually knows their real identity. Good luck with that.

    BTW, as a word of advice for any company hoping to sanitize its online image - When I search for product reviews, if I find nothing but positives, I consider that worse than a legitimately mixed bag of pros and cons... Or even more laughable, tossing in some pathetic token "cons" that complain about your product just working too well: "After trying a handful of wimpy competitors, I thought I could easily handle the awesome power of SpleemCo(tm)'s Widget Frobulator, but it had me scared to go past 60%! For pros only, guys!"
  • by organgtool (966989) on Thursday January 09, 2014 @01:03PM (#45907619)
    The judge seems very worried about protecting businesses from false negative reviews but how about protecting consumers from false positive reviews? Does this mean that shills are required to use their real names as well (at least in Virginia)?
  • by Jason Levine (196982) on Thursday January 09, 2014 @01:06PM (#45907643)

    I used to work on a review site a decade ago (which is forever in Internet terms). At the time, I processed all reviews by hand to weed out spam submissions. (The site was small enough to allow this at the time. Obviously, looking back, it wasn't a scalable solution.) Along with spam submissions, I'd occasionally get a wave of positive reviews for products. These reviews would have similar wording and would invariably come from the same IP address. After a decade, I'm sure the shills have gotten less obvious about their glowing product/service reviews so I don't envy people who need to weed the shills out from the actual reviews.

    The other side of this coin is that people could submit negative reviews that weren't earned whether out of spite for unrelated company actions (e.g. I don't like the founder's political stance so I'll post that his business's service stinks) or as a method of unfair competition (e.g. If we ruin their rating on Yelp, our competing carpet cleaning business will pick up). I can understand a business being afraid of phony negative reviews hurting their reputation. That being said, the names shouldn't be released to the business itself but to a third party who would also get the business' customer list and could compare them to weed out anyone who wasn't a customer. This third party would be forbidden from revealing the real names of the Yelp users - or the business' customer list - to anyone and would only report back which online screen names were not customers.

    In fact, I'd go so far as to say that the court is setting up a huge legal risk. Let's, for a second, accept the following as true:

    The Virginia Court of Appeals agreed this week, ruling that the comments were not protected First Amendment opinions if the Yelp users were not customers and thus were making false claims.

    Now let's say Yelp releases the names of these 7 commenters and none were customers. Fine, no rights violated. (Again, for the moment, we're accepting the court's ruling.) However, if at least one of those comments came from an actual customer, then those people's rights will have been violated. The court has basically stated that no rights will be violated by assuming an outcome where no rights are violated. (Circular reasoning at its finest!)

    • Saying a business sucks because of the owners stance is free speech in the sense that business donating money to a candidate is speech. Especially if I don't lie about specifics, and just say it blows. I can see this view being unpopular among business owners, but I can see its validity in context of case law.
      And free speech allows shill reviews. I argue that shill reviews harm the hosting site's reputation, and people will find another site to trust. An example is amazon, with its verified purchase reviews

  • by kheldan (1460303) on Thursday January 09, 2014 @01:09PM (#45907685) Journal
    That's an unnecessarily sensationalist headline if I ever saw one. Slashdot editors get modded down to "-1, Troll" for that so far as I'm concerned. Some random court making a ruling concerning one single website does not a huge controversy make.
  • If the courts are obsessed with full disclosure how about we start posting online full receipts for services? I have thought about doing this many times when I thought I was being ripped off by a service provider and wanted to warn other potential customers of my negative experience. If one is unable to legally provide anonymous public feedback about a service provider then why should one be limited in publicly disclosing all their interactions with the service provider?
  • Give him a mask... (Score:3, Insightful)

    by Petron (1771156) on Thursday January 09, 2014 @01:15PM (#45907765)

    Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth.
            -Oscar Wilde

    • Re: (Score:3, Insightful)

      Oscar Wilde: "Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth."

      On the internet, if you give him a mask "he will start trolling".
  • by kaizendojo (956951) on Thursday January 09, 2014 @04:12PM (#45910249)
    Allow anonymous comments, but then let NON anonymous member/moderators decide whether they are full of shit or not. You know, like we do here.

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