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Column: Anonymous online reviews may not be so anonymous - Frankel

(Alison Frankel writes the On the Case blog for Thomson Reuters News & Insight http://newsandinsight.com. The views expressed are her own.)

By Alison Frankel

NEW YORK (Reuters) - On Wednesday, the Public Citizen Litigation Group filed an appeal for the online review site Yelp Inc, asking the Virginia Court of Appeals to review a trial-court order compelling Yelp to reveal the identity of seven anonymous reviewers who complained about a Washington carpet-cleaning service that subsequently sued them for libel and defamation.

Yelp and Public Citizen contend that Alexandria City Circuit Court Judge James Clark got it wrong when he ruled that despite First Amendment protection for anonymous online critics, a Virginia statute requires the disclosure of their names when their identity is central to claims against them.

That's a pretty scary holding if you live in Virginia and are in the habit of expressing yourself anonymously on the Internet. I should note that there are restrictions on how far the ruling goes. Hadeed Carpet Cleaning's libel suit asserts that the seven particular John Does named as defendants were actually competitors smearing Hadeed, not customers posting genuine reviews. Judge Clark agreed that because Hadeed claimed the seven reviewers falsely represented themselves, it met the standard set out in the state law governing disclosure of their identity.

The problem, at least according to Public Citizen, is that the standard in Virginia isn't clearly defined by that law. Appeals courts in the state have not previously considered this question, but Public Citizen argues in the brief filed Wednesday that other state appellate courts have, and they've all reached conclusions contrary to Judge Clark's. "Every other appellate court has held, whether under the First Amendment or under state procedures, that anonymous defendants are entitled to demand that the plaintiff make a factual showing, not just that the anonymous defendant has made critical statements, but also that the statements are actionable and that there is an evidentiary basis for the prima facie elements of the claim," the brief said. Yelp's lead counsel, Paul Alan Levy of Public Citizen, told me the Virginia trial judge flat out erred in his interpretation of both the Virginia statute - which Levy says is merely procedural and does not set out a standard for disclosing a critic's identity - and prevailing precedent.

Levy was actually involved as an amicus in the two cases that set widely used standards for when Internet service providers must reveal the identity of anonymous online critics. In Dendrite v. Doe, an intermediate appeals court in New Jersey held in 2001 that courts must strike a balance between the First Amendment right to speak anonymously and the right of targets of online criticism to assert claims based on the anonymous posts. Among other requirements, Dendrite holds that targets must put forth evidence sufficient to withstand a dismissal motion before they can obtain an order directing the disclosure of critics' identities. A few years later, the Delaware Supreme Court, in Doe v. Cahill, set the bar even higher. Under Cahill, when a public figure (in this case, a state politician) sues an anonymous critic for defamation, he or she must be able to show sufficient evidence to withstand summary judgment on each element of the claim in order to unmask the critic's identity.

There's an "emerging consensus," according to a 2012 study in the Yale Journal of Law & Technology by media law professors Jason Shepard and Genelle Belmas of California State University at Fullerton: In libel cases attempting to unmask anonymous posters, the standards laid out in the New Jersey and Delaware cases appropriately balance both sides' rights. "The Dendrite and Cahill tests recognize the importance of anonymous speech while still providing the potential to find out the speaker's identity if the speech causes sufficient harm," the professors wrote.

But as the Virginia court's Yelp order shows, not every judge has agreed with the standards laid out in Dendrite and Cahill. In another Public Citizen case (yes, this is Levy's niche), a Michigan state appeals court found last month, in Thomas M. Cooley Law School v. Doe, that Michigan procedural rules on discovery - and not the Dendrite and Cahill tests - protect the identity of an anonymous blogger who viciously criticized the law school. In a blog post after the ruling was issued, Levy said he was glad his client's identity would stay under wraps but that he was disappointed the appeals court didn't provide more guidance about the standard that Michigan trial judges should apply in unmasking cases. "While the Doe was well-protected in this case," he wrote, "that is only because Cooley Law School issued a press release announcing its defamation claims, enabling the Doe to file a motion to block the subpoena." (Illinois courts have similarly applied state discovery rules, rather than tests established by other states, to decide whether to protect the identify of online posters. Levy said he'd like to find a case to challenge the Illinois holding.)

Hadeed's lawyer, Raighne Delaney of Bean Kinney & Korman, told me that Levy's appeal in the carpet cleaner's Virginia case is basically asking the court to ignore Virginia law. "He simply doesn't like the Virginia statute," Delaney said. "He wants us to use law from other states." Delaney said that the Virginia statute assigns a gatekeeper function to the trial judge, and Judge Clark fulfilled that role when he evaluated Hadeed's potential claims against supposed competitors. "I think Hadeed is courageous in bringing this case," Delaney said.

(Editing by Ted Botha)

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