In recent years, some businesses have complained that impostors and competitors have falsely posted negative reviews on Yelp and similar online review sites. I myself have not suffered this problem, but I once was confronted with a web site purporting claiming to be in my name and containing offensive content, but which had enough identifying information that it fooled my own mother and prompted someone to notify the Oregon Bar.
Businesses facing negative reviews sometimes try to sue the posters for libel. They may, however, face the practical problem of identifying the proper defendant. Yelp and similar sites are usually considered not to be liable because they do nothing more than provide the forum, but the posters are often anonymous. As a result, plaintiffs usually sue unidentified defendants and have subpoenas issued to the sites, seeking records from which the posters can be identified.
Some sites, including Yelp, have resisted these subpoenas, including asserting the free speech rights of the posters. As many as twenty cases have resulted in published opinions discussing “unmasking” subpoenas, and the courts have not yet come to a consensus as to review these subpoenas. A recent case from Virginia illustrates the issue.
A carpet cleaning business in Virginia found several reviews on Yelp that it could not identify in its customer records. It sued the posters for libel, based on statements that it had given poor service, had overcharged, and had once been bankrupt. After Yelp declined to identify the posters, the cleaner subpoenaed Yelp for identifying records. Yelp resisted, to the point of being held in contempt by the trial court and ordered to pay $1,500 in sanctions and attorney fees. Yelp appealed, asserting its customers’ free speech rights.
The court acknowledged that there is a First Amendment right to anonymous speech. That right, however, is not unlimited. There were two significant limits in this situation. First, defamatory speech is not, in itself, constitutionally protected. Second, speech for commercial purposes does not have the same level of protection as political, artistic, or religious speech, which was the core of the First Amendment speech right.
Although there are constitutional limitations on what statements may be found defamatory, lying is generally not protected speech. As the court saw the posts as falsely claiming to be from customers of the cleaner, it proceeded to the question of what conditions were required to be met before it would uphold the subpoena.
Virginia has an “unmasking” law governing subpoenas to identify anonymous defendants, which the court applied. Among the significant requirements are prior notice to the Internet service provider, who is required to notify the poster; unsuccessful attempts by the plaintiff to identify the poster by other means; that the post may, in fact, commit a tort such as libel; and that the identify of the poster is needed for the case to proceed. The court found that all of these requirements (and several minor ones) were met in light of the plaintiff’s comprehensive search of its customer database; one judge, however, dissented because it found that the need for the poster’s names to determine whether they were,or were not customers was not a sufficient reason to override the posters’ speech rights.
There does not appear to be any law, rule, or published court decision in Oregon addressing the unmasking issue, but the OrWegon Supreme Court’s interpretation of the speech clause in the state constitution may suggest that it probably would uphold a subpoena. Oregon’s speech clause is generally read as subject to the historical exceptions to speech protections at the time of the 1857 constitutional convention. Libel and slander were considered to have no constitutional protection at that time, so an unmasking subpoena to identify a defamatory poster is likely to be upheld if sufficient need shown.
Washington also appears not to have a clear rule for unmasking subpoenas, but a 2001 federal case about a subpoena issued in Seattle to identify witnesses for a California case does give some indications. The court in that case ruled that tougher conditions should be imposed when the person to be identified is a witness instead of a defendant. For witnesses, the court wanted the party seeking the subpoena to prove that the information was directly and materially relevant to a claim or defense and there were no other sources by which the witness could