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April 16, 2015

Victory: Virginia Supreme Court Says Yelp Need Not Identify Commenters, Subpoena Was Pursued in the Wrong State

Case Stemmed From Negative Online Reviews of Carpet Cleaning Service; Decision Doesn’t Address First Amendment Question

Note: To talk with some of the anonymous online reviewers in the Yelp, Inc. v. Hadeed Carpet Cleaning case, please contact their attorney, Matt Kelley, at (202) 508-1112.

WASHINGTON, D.C. – Consumers and honest businesses achieved a victory today when the Virginia Supreme Court ruled that Yelp doesn’t have to identify online critics of a carpet cleaning service. Saying the subpoena had been pursued in the wrong state, the court reversed a subpoena that ordered Yelp to identify seven authors of negative online reviews criticizing Hadeed Carpet Cleaners.

On July 2, 2012, Hadeed sued seven Yelp reviewers after receiving critical reviews, and on July 3, Hadeed subpoenaed documents from Yelp that would identify the authors. Yelp objected, saying that the First Amendment protects its users from being identified unless certain requirements are met. Yelp also argued that the subpoena was issued in the wrong state; its main office and relevant records are in California, not Virginia.

Today, because the case wasn’t filed in California, the Virginia Supreme Court reversed an appellate court’s decision upholding the subpoena.

“Although we were hoping the court would rule on both jurisdictional and First Amendment grounds, this is still an important win,” said Paul Alan Levy, the Public Citizen attorney representing Yelp. “If Hadeed turns to California courts to learn the identities of its critics, those courts will require it to show evidence to meet the well-accepted First Amendment test for identifying anonymous speakers. And so far, Hadeed has not come close to providing such evidence.”

When the case began in 2012, Hadeed Carpet Cleaning sued the seven Yelp reviewers over allegations that their posts were false and defamatory because it claimed that it could not be sure the reviewers were customers. But Hadeed did not deny the substance of the posts – namely that it sometimes charges twice the advertised price or charges for work not performed. Hadeed has had the opportunity to show evidence for denying one or more of the seven Does of their First Amendment right to speak anonymously, but has not done so.

“Consumers should have the right to criticize anonymously online so long as they don’t lie about their experiences, and there has been no evidence to show that this has been the case,” said Levy. “We will look for other Virginia cases through which to establish the procedures for protecting the First Amendment right of online reviewers.”

Local counsel is Raymond Battocchi of McLean, Virginia.

Read the court’s opinion (PDF).

View more information about the case.

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