Companies Can Now Fight Back Against Anonymous Online Criticism

It is every company’s worst nightmare: An anonymous poster goes online and makes negative and disparaging statements about the company.  In the social media age we are in, this unfortunate scenario has played out countless times on such sites as Yelp, Rip-Off Report, and other online review sites.  Companies faced with this situation have largely felt powerless to counteract anonymous posters or even find out who the posters are.  But a recent decision by the Virginia Court of Appeals will now give companies some much needed leverage to fight back.

Yelp was forced this week by the Virginia Court of Appeals to “unmask” anonymous posters who posted negative, and possibly false, reviews about a local Virginia carpet cleaning company, Hadeed Carpet Cleaning. Hadeed believed that seven negative Yelp reviews of its services were false, and so it filed a defamation lawsuit against the anonymous posters, naming them as “John Does.” In order to unmask the anonymous posters, Hadeed then sent a subpoena for documents to Yelp, which Yelp objected to on First Amendment grounds.

The Virginia Court of Appeals ruled that Yelp had to comply with the subpoena and provide information about the identities of the online posters.  The Court balanced the First Amendment rights of the anonymous posters versus the rights of companies to protect their reputations, and stated that false statements are not protected by the First Amendment. Yelp argued that Hadeed Carpet Cleaning had to prove its defamation case before Yelp could be forced to unmask its posters – even though Virginia law does not require companies to meet that burden. The Court clarified that Virginia’s unmasking procedure only requires a company to have a legitimate good faith basis to contend that it has been a victim of defamation. Yelp now has to produce the records and disclose the people who posted the negative reviews.

This is a very significant decision in the social media arena, and provides some much-needed leverage for businesses seeking to protect their online reputations against false and often faceless posters. Businesses often need to protect themselves against online attacks by posters who post false reviews, and this recent decision clarifies the legal avenues available to companies in Virginia and potentially elsewhere to protect against malicious posters seeking to damage business reputations.

Seth Berenzweig is a managing partner at the DC regional business law firm, Berenzweig Leonard, LLP. Seth can be reached at sberenzweig@berenzweiglaw.com. Katie Lipp, an attorney with the firm, co-authored this post. Katie can be reached at klipp@berenzweiglaw.com.

A License to Libel: Virginia Federal Court Extends Immunity under Communications Decency Act

Today, every business knows how important its online reputation is when it comes to attracting new customers.  With businesses becoming increasingly impacted by online review sites, many have taken to the courts in an effort to protect themselves against negative internet postings. One such advertising company, Directory Assistants, Inc. (DAI) sued its competitor, SuperMedia, LLC, two of its sales representatives, and a district sales manager, for allegedly emailing prospective customers with links to negative and allegedly defamatory postings about DAI on consumer websites, such as ripoffreport.com.

In its recent ruling, a Norfolk, Virginia federal court dismissed DAI’s case on the ground that the Communications Decency Act (CDA) shielded SuperMedia from liability. Section 230 of the CDA provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” While many federal courts of appeal, including the Fourth Circuit, have held that the CDA creates broad federal immunity for internet service providers, this was the first Virginia federal case to extend immunity under the CDA to a third party “user” who finds and forwards content posted online. The Court recognized that Congress has granted “anonymous posters on these websites a license to libel people” and that such blanket immunity could have potentially catastrophic consequences for individuals and businesses alike, but concluded that “under the CDA, the Court’s hands are tied.”

Thus, unless Congress amends the CDA, business owners are limited to suits against individuals who actually wrote, created, or developed the allegedly defamatory content. As such, businesses should make every effort to take a proactive approach to improving their online reputation, survey their customers for reviews and honest feedback, and timely respond to any customer grievances.

Author Sara Dajani is an Associate Attorney with the D.C. regional business law firm of Berenzweig Leonard, LLP.  She can be reached at sdajani@berenzweiglaw.com.