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Your Anonymous Reviews and Comments May Not Be Anonymous Much Longer

A Virginia court set a new free speech precedent, and Yelp ain't happy about it.
A Virginia court set a new free speech precedent, and Yelp ain't happy about it.
Screenshot by Kaitlin Steinberg

So much for free speech.

Last week, a Virginia court ruled that Yelp must turn over the identities of seven anonymous reviewers of a carpet store because the commenters may not have been actual customers. According to Yelp's terms of service:

"You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.

The part that stood out to the court in Virginia is the bit about "material that is false." According to the court, these statements aren't protected by the First Amendment right to free speech. By that logic, neither are your restaurant reviews on Yelp or your anonymous comments on blogs unless they're clearly non-libelous opinions or verifiable statements of fact ... Right?

This story continues on the next page.

 

I hope you saved those dining receipts.

Yelp, sometimes you're the mean girl. But I guess that's your right.
Yelp, sometimes you're the mean girl. But I guess that's your right.
Photo by Jason K

In the case in Virginia, the 25-page majority opinion was written by Judge William Petty, who said, "The anonymous speaker has the right to express himself on the Internet without the fear that his veil of anonymity will be pierced for no other reason than because another person disagrees with him." However, he went on, if "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." As such, it's no longer subject to First Amendment protection.

That makes sense in theory, but how do you police something like that? Yelp is concerned that its users will no longer feel sufficiently safe to express their opinions without fear of retribution. After the ruling, the company released the following statement:

"We are disappointed that the Virginia Court of Appeals has issued a ruling that fails to adequately protect free speech rights on the internet, and which allows businesses to seek personal details about website users -- without any evidence of wrongdoing -- in efforts to silence online critics. Other states require that plaintiffs lay out actual facts before such information is allowed to be obtained, and have adopted strong protections in order to prevent online speech from being stifled by those upset with what has been said. We continue to urge Virginia to do the same."

The defense believes that the lawyers for the carpet company couldn't adequately prove that the people who wrote the negative reviews were indeed never customers. The carpet company claims that the individuals' names are nowhere in its database, and they must have therefore fabricated their comments on the business. But what if this burden of proof becomes the standard? Will people have to photograph their receipts in order to post a review on Yelp? And if so, Yelp wonders, what will the businesses do with this information about their unhappy customers?

The topic of Internet anonymity is a tricky one. Anonymity leads to what psychologists call "deindividuation," wherein societal norms are abandoned because identities are hidden. It's why people can be real assholes in a comment section, writing things they would never say in "real" life. It's what caused dozens -- if not hundreds -- of commenters to write horrible reviews of Amy's Baking Company in Arizona when many of them had never even been there. Similar things have happened at restaurants across the country in response to a negative depiction in the media. Suddenly, everyone's a critic, but with great power comes great responsibility to not be an arrogant ass just because you can.

But while it is unfortunate that people will write negative feedback about a place they've never eaten at or about a service they've never used, it's even more unfortunate that the right to anonymity is being taken away because of a few self-centered idiots. Though this ruling isn't likely to directly affect Texas in the near future (we have more stringent standards for proving defamation here), it could impact the way people review restaurants online now that they know their opinions aren't necessarily anonymous.

This type of ruling could eventually force other websites that allow anonymous commenting (you know, like this one) to take away that right over fear of lawsuits. No, we don't really like it when you say mean things to us, but, yes, it's your right to do so.

So how do you think this decision from Virginia will affect online restaurant criticism? Will you continue to use Yelp now that you know your identity and personal information aren't necessarily protected?


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