This post was written by Kimberly R. Chow and John P. Feldman.
On September 15, a judge in Boston ruled that Yelp must reveal the identity of an anonymous commenter who wrote a negative review of a jeweler on the online review site.
The order to non-party Yelp in the attempted defamation suit of the jeweler against the commenter is the latest in a series of attempts by libel plaintiffs and the government to force content hosts to unmask anonymous commenters. Content hosts have argued that the First Amendment protects the right to speak anonymously, and that identifying online commenters threatens to chill freedom of expression on the Internet. Boston Municipal Judge Robert J. McKenna Jr.’s ruling that Yelp must reveal a commenter’s identity stands in contrast to a recent Virginia Supreme Court case holding that a subpoena to Yelp for reviewers’ identities could not be enforced.
After the commenter, identified in the suit as Linda G. Doe, left a negative review of Pageo, a jewelry store in Boston, on Yelp, claiming that the owner had maliciously paid her a price much less than the worth of the jewelry she sold him, the owner, George Pelz, sued Doe in Boston Municipal Court and issued a subpoena to Yelp to discover Doe’s true identity. Pelz argued that he could tell that Doe was not an actual customer of his store because she claimed to have been a frequent customer and he was familiar with his longtime clients.
Yelp argued that, under the First Amendment, protection of anonymous commentary is vital to encouraging contributions to the public marketplace of ideas. Additionally, Yelp challenged the court’s jurisdiction over the case, maintaining that California was the proper forum for adjudication. In California, at least one court has found that the right to comment anonymously is protected under the state constitution.
In April, the Virginia Supreme Court ruled in the case Yelp v. Hadeed Carpet Cleaning, Inc. that, while a local court could exercise personal jurisdiction over out-of-state, nonresident parties to Virginia actions, it could not force those parties to produce documents located out of state. Thus, since Yelp was headquartered in California, the subpoena for the identities of Yelp commenters must be issued there and not in Virginia, where the plaintiff’s business was based. The court did not reach the First Amendment implications of the subpoena.
This latest holding that Yelp must release the identities of anonymous commenters heralds possible difficulties for content hosts in the future if courts are beginning to discount First Amendment and jurisdictional reasons to deny subpoena enforcement. However, other courts around the country have quashed these subpoenas, and Yelp and other content hosts are fighting hard for that trend to continue.