Once again, a business who is displeased with an anonymous review on Yelp is trying to sue that reviewer and attempting to compel Yelp to reveal that user’s actual identity. But this morning, lawyers for Yelp and consumer advocates were in court to argue that there is no justification for unmasking the writer of this review.
In June 2013, a Yelp user with the screen name “Lin L.” wrote a Yelp review for a real estate firm in Texas.
The review stated that the agent she worked with was “by far the worst deceitful and money greedy sales agent you would ever deal with,” who “failed to represent us as clients, never explained our contracts to us and not once did he ever ask us what we wanted to keep or take in our home,” along with other claims that she was rushed into selling the house so that the agent could make his commission.
Then in May 2014, the firm contacted Yelp to request the removal of the review. After looking into Lin L.’s comments, Yelp decided in June 2014 to allow the review to stand “because it appeared to reflect the user’s personal experience and opinions, consistent with Yelp’s Terms of Service and Content Guidelines.”
When Aug. 2014 rolled around, the firm’s lawyer contacted Yelp, claiming that Lin L. was never a client and that what she describes in the review never occurred. The lawyer warned that if Yelp did not “immediately remove this review and disclose the full identity of this individual,” the firm would file a lawsuit seeking damages and attorney fees.
Yelp’s response defended its decision to keep the review online saying it still believed the write-up reflected the user’s opinions and experiences. However, if the real estate firm were able to prove in court that the review is defamatory, Yelp would reconsider. The site also said it would not reveal Lin L.’s identity without a valid subpoena.
Keep in mind that Yelp may not even have Lin L.’s real identity. Yes, you need to provide a first/last name, e-mail address and ZIP code when registering for Yelp, but there are no assurances that the name or location info provided to Yelp is accurate. I could go in and create an account using the name Steve Sanders and giving a 90210 ZIP code, but that doesn’t make me this guy.
Back to the case at hand…
In Nov. 2014, more than a year after the original review was posted, the real estate firm filed suit in a county court in Texas, alleging claims for defamation, civil conspiracy, and exemplary damages against defendant Lin L., but did not name Yelp as a defendant. The firm did, however, issue a subpoena to Yelp’s registered agent in Delaware, demanding identifying information and “all records and documents in your possession pertaining to LIN L.”
Yelp objected to the subpoena as it was served in Delaware, seeking documents stored in California, for a case in a Texas court.
Eventually, the firm’s lawyer filed a motion to compel with the court, asking it to require that Yelp provide the information sought by the subpoena.
Last week, Yelp and Paul Alan Levy, attorney for consumer advocacy group Public Citizen, filed an opposition [PDF] to the motion to compel, and then appeared before the court this morning to make their case.
The first issue involves the validity of the subpoena. Yelp maintains that a court in Texas, where Yelp has no offices, lacks subpoena jurisdiction over the California-headquartered company. This could have been avoided, argues Yelp, if the firm’s attorney had presented the Texas subpoena to the clerk’s office of a California circuit court, along with the proper application and fee. The clerk would then be obligated to issue a California subpoena.
But even if the subpoena had been served properly, or if the court rules that a local Texas court does indeed have subpoena jurisdiction, Yelp contends that the real estate firm has not yet met the constitutional requirements for compelling Yelp to identify Lin L.
“Because compelled identification trenches on the First Amendment right of anonymous speakers to remain anonymous, justification for infringing that right requires proof of a compelling interest, and beyond that, the restriction must be narrowly tailored to serve that interest,” reads Yelp’s opposition to the motion.
Yelp also points out that the mere unmasking of an anonymous reviewer may have a chilling effect on others’ decisions to exercise their First Amendment right to anonymous speech.
“Indeed, in a number of cases, plaintiffs have succeeded in identifying their critics and then sought no further relief from the court,” argues Yelp and Levy. “The federal Fifth Circuit has sanctioned a Texas lawyer who used subpoenas to identify anonymous defendants, not with any intention of litigating against them but in the hope of extorting quick settlements through the threat of public shaming.”
Yelp also asks the court to rule that the subpoena and the motion to compel is frivolous. The lawsuit was filed more than a year after the original review was posted, which is beyond the 12-month statute of limitations for libel claims in Texas.
by Chris Morran via Consumerist
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