When you write a review on Yelp, you are supposed to feel assured in your ability to keep your identity from being made public. But a Virginia carpet cleaner is attempting to compel Yelp to reveal the names of seven people who posted reviews about the company.
Last July, the carpet cleaning company filed suit against seven reviewers who stated that it sometimes charged significantly more than the advertised price or charged for work that had not been performed. The plaintiff claimed that what had been written on the site was false and defamatory, even though other customers had made similar comments on Yelp without being sued by the company. The plaintiff also alleged that the reviewers were possibly working for competitors and were writing negative reviews in order to make his business look bad.
At the same time, the plaintiff subpoenaed Yelp, seeking documents that would identity of the seven defendants. Not surprisingly, Yelp objected, claiming that its users’ rights would be violated by identifying them without the plaintiff first proving that certain conditions had been met. Yelp also objected because the subpoenas were issued in Virginia, while Yelp’s documentation is all in California.
In spite of these objections, a trial court in Alexandria, VA, last November ordered Yelp to abide by the subpoena and provide the requested information to the plaintiff. Yelp has yet to oblige, but has asked the plaintiff to name any reviewers it believes were employed or connected to competitors so that it might investigate. However, the carpet cleaner has not taken Yelp up on this offer.
On Jan. 9, the court held Yelp in contempt for not providing the subpoenaed documents and fined the website $500, though that fine has been stayed pending appeal.
We looked at the Yelp page for the carpet cleaner, which currently has a 2.5-star rating. However, only seven reviews count toward that rating, while there are more than 80 filtered reviews.
Among those filtered reviews, we found many, many one-star write-ups.
“My biggest complaint was that they cleaned my rug without giving me an estimate and then hit me with an huge bill,” reads one.
“Several months ago I saw an ad… to clean ‘X’ number of rooms for $99 with free odor neutralizing with a coupon (which I had),” reads another. “Upon arrival, and without prior knowledge about any add on fees from the… scheduler, I found out that they charge $40 per room to move ANY furniture. This was in addition to several other add on fees that the technicians charged. Bottom line is that i was charged almost $500 to have 3 rooms, 12 steps and a foyer cleaned.”
There are several pages of this if you want to peruse, many of them with replies from a company rep.
Yesterday, the folks at Public Citizen filed an appellate brief [PDF] on behalf of Yelp with the Virginia Supreme Court. In it, lawyers for Public Citizen argue that, at the very least, the plaintiff needs to show evidence that a defamation lawsuit has merit before Yelp should be compelled to identify the users. Additionally, there should be a factual showing that the statements made are, in fact, false and defamatory, argues the brief.
Given that the case has yet to be heard, the plaintiff has not shown or proven that these reviews contain false statements. Further, since the lawsuit alleges only that the reviews are false because the review-writers were not customers — and not because what they wrote is factually inaccurate — Public Citizen maintains that the defamation claim by the plaintiff is weak.
Finally, the brief contends that a Virginia trial court lacks the authority to compel an out-of-state business that is not party to the lawsuit to produce documents.
“Despite the free resources that Yelp provides to businesses to respond to reviews, unfortunately some turn to litigation aimed at silencing critics – even when the claims lack merit,” said Aaron Schur, senior litigation counsel for Yelp. “Rules must be established to protect this important speech, which is why Yelp is asking the court to clarify the standards for subpoena demands for user information.”
“The principles at stake here go to the core of the right of people to criticize companies on the Internet anonymously,” said Paul Alan Levy, one of the Public Citizen attorneys representing Yelp. “Many states have adopted a set of criteria that ensure the rights of online posters. Virginia needs to do the same.”