The Fight to Expose Defamatory Online Reviews

Posted by Jeanine Gagliardi on Fri, 08/29/2014 - 04:00

It is easy for customers to post negative or even false reviews on the internet. Businesses that are criticized often wonder whether they can take legal action for defamatory online reviews. Unfortunately, it is not so easy. One of the biggest difficulties is learning the identity of anonymous online posters.

We recently wrote about different legal standards courts use when assessing the right of internet posters to remain anonymous. The standards are being defined currently, and the case we previously reported on is still being contested in Virginia’s highest court. Continue reading for the latest . . .

The case arose when a business sued anonymous reviewers and subpoenaed Yelp for information about them. Although Yelp objected, the trial court ordered it to produce information about the posters. Despite the order, Yelp continued to withhold and was held in contempt by the trial court.

Yelp appealed the order of contempt to Virginia’s intermediate appellate court, contending that the trial court’s decision violated the users’ First Amendment rights to free speech. The court rejected Yelp’s argument, finding that the business’s good faith belief in the unlawfulness of the online postings was sufficient to outweigh the users’ First Amendment rights.

This is the decision under review in Virginia’s Supreme Court. Because the Virginia Court’s opinion will not control courts in other jurisdictions, even after it renders the decision, the law concerning piercing an Internet poster’s anonymity will remain murky. Two things that business can be certain of, though, are that:

(1) under all of the standards used by courts so far, the question of whether a business will be able to discover the identity of an anonymous online reviewer is complex; and

(2) before rushing to file suit, you should undertake an analysis of the likelihood that you will succeed in overcoming users’ First Amendment rights in the circumstances of your case.

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