Ferreting Out the Frauds: a Virginia Court Orders Yelp To Identify Anonymous Users

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Social media is widely used in the hospitality industry for everything from promoting sales to recruiting new talent. Facebook, Twitter, Pinterest, Foursquare, and a number of other sites provide hoteliers and restaurateurs with nearly limitless access to local, national, and international audiences.

In recent years, sites like Yelp have emerged to provide customers with an anonymous, online platform to post reviews of businesses, and its impact has been far-reaching. In the first quarter of 2013, Yelp allegedly averaged nearly 102 million unique visitors per month.

Many businesses understand the importance of widespread feedback, monitor Yelp and similar sites for both positive and negative reviews, and interact with reviewers about their experiences. Cyber-saboteurs are an unfortunate risk to companies with an Internet presence, and a number of employers have undoubtedly been the subject of anonymous, negative, and disparaging attacks by competitors or disgruntled employees.

The lawsuit

A carpet cleaning company in Virginia filed suit against seven individuals who anonymously posted allegedly defamatory statements about the company on Yelp. To identify the posters, the company served Yelp with a subpoena duces tecum asking it to produce documents revealing the identities of the seven individuals. Yelp refused, based in large part on its argument that the First Amendment to the U.S. Constitution protects the seven individuals’ rights to anonymous, free speech. The circuit court disagreed with Yelp and held it in civil contempt. Yelp appealed to the Court of Appeals of Virginia.  ,

The appellate decision

In Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 0116-13-4 (January 7, 2014), the Court of Appeals of Virginia agreed that Yelp was in contempt for failing to comply with the subpoena. In affirming the lower court’s ruling, the court of appeals made the following observations:

  • The State of Virginia has enacted a statute that includes specific procedures designed to “unmask” people communicating anonymously over the Internet.
  • Free speech is protected by the First Amendment.
  • Anonymous free speech is protected by the First Amendment.
  • “An Internet user does not shed his free speech rights at the log-in screen.”
  • The freedom of speech, and the right to speak anonymously, is not absolute.
  • Defamatory speech is not entitled to constitutional protection.
  • “Commercial speech” is afforded less protection than literary, religious, or political speech.
  • Matters of opinion are protected as free speech.
  • “Factual statements made to support or justify an opinion…can form the basis of an action for defamation.”
  • “Generally, a Yelp review is entitled to First Amendment protection because it is a person’s personal opinion about a business that they patronized,” but if the customer never visited the establishment, then the review is not an opinion, and instead, is based on a false statement of fact.

In this case, the court found that the company had met the requirements of the unmasking statute by showing, among other things, that the communications by the anonymous Yelp users (which included statements that the company overcharged for services) are or could be tortious or illegal. The company’s evidence that it had conducted an independent investigation in an attempt to match the negative reviews with customers in its database was persuasive to the court. But, despite its efforts, it was unable to match the reviews with customers.

The implications

The line between free speech, including opinion speech, and defamation, remains a fine one. Although Texas currently does not have an unmasking statute, the Hadeed opinion’s rationale for revealing the identities of potentially defamatory Internet users may prove persuasive to Texas courts. Hospitality employers should keep a watchful eye on comments and feedback from social networking sites and discuss any potential defamation issues with counsel.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.