“Taking Cloaks to the Cleaners” Mentions McKee V Laurion

Taking Cloaks to the Cleaners: A Case Study of Yelp V.Hadeed Carpet Cleaning Reveals the Need for Stronger Unmasking Standards

A THESIS  SUBMITTED TO THE FACULTY OF UNIVERSITY OF MINNESOTA

BY

Kristen Patrow

IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS

Dr. Amy Kristin Sanders

June 2014

This thesis begins with a discussion of the U.S. Supreme Court’s seminal defamation cases. A discussion of the historical protections for anonymous speech follows, providing a foundation for the discussion of anonymous speech online. This paper examines multiple cases to establish the judicial standards that courts have developed to determine whether to unmask the identity of anonymous commenters online. A case study of the recent Yelp decision follows, highlighting the incongruity with these various standards. Next, an in-depth examination of James Carey’s models of communication and the theoretical justifications for protecting anonymous and harmful speech explains the need for a national unmasking standard. To conclude, the thesis proposes an unmasking law that comports with First Amendment protections of speech and societal interest in punishing harmful speakers for their misdeeds.

INTRODUCTION

What happens when negative reviews appear to correspond with a drop in revenue? For Joe Hadeed, owner of Hadeed Carpet Cleaning, it meant it was time to sue the commenters who left the negative reviews of his business.

Over the course of a few weeks in 2012, a long sequence of negative reviews caused Hadeed’s rating on the popular review site Yelp to plummet. According to Hadeed, following the string of unfavorable comments, business dropped by 30% and revenue dropped from $12 million in 2011 to $9.5 million in 2012, which caused Hadeed to lay off 80 workers and sell six trucks.

Hadeed sued Yelp in July 2012, asserting his company had been defamed because the reviewing customers could not be matched to the company’s records, which included “time, location, and sales data.”

Yelp refused to hand over the identifying information of the commenters, but Virginia’s trial and intermediate appellate courts agreed with Hadeed and held Yelp in contempt.

In January 2014, Yelp appealed to the Virginia Supreme Court, asserting that Hadeed had not adequately proved the statements were defamatory.

More and more frequently, businesses are claiming they need protection from false and defamatory postings, often referred to as “revenge reviews,” on websites like Yelp. Yelp, on the other hand, claims the reviews are protected by the First Amendment and has hired a lobbyist to support a federal Anti-SLAPP law.

Anti-SLAPP laws try to prevent powerful plaintiffs from filing unsubstantiated claims against detractors in an effort to silence their speech. Plaintiffs may use costly court fees to threaten defendants with financial hardship when they disagree with the views that are expressed.

Yelp launched in 2004 as a way for consumers “to connect with great local businesses.” It offers a review system that relies on patrons to rate establishments they frequent. Yelp is one of many online rating and reviewing sites, and it had 120 million unique visitors per month in the last three months of 2013. The company states that most of its reviews praise good businesses, but that it encourages negative reviews as  long as they are honest. In its Terms of Use, Yelp asks reviewers to share their personal experiences and not those of a third party because the company remains neutral in review disputes. Yelp asserts that it expects reviewers to “stand behind your review.”

In recent years, various claims for defamation against users of Yelp and similar websites have surfaced because business owners were not pleased with some of the reviews. When a court finds that a reviewer was merely expressing an opinion rather than a false assertion of fact, the speech is generally protected because under the First Amendment, “there is no such thing as a false idea.

For example, in Minnesota, a man used various doctor-review websites to complain about the physician who treated his father. In his suit, the doctor stated that these claims were defamatory, including a statement where the reviewer calls the doctor a “real tool.” The doctor did not win the case because the Minnesota Supreme Court determined that calling someone a “tool” was an expression of opinion and not a statement of fact. ( *** )

As mentioned earlier, many businesses revile Yelp and believe the website provides a breeding ground for unwarranted disparagement and harassment. Studies have shown that small businesses have more to gain from Yelp reviews, so it follows they likely also have more to lose. Some small businesses have filed complaints with the Federal Trade Commission (FTC) asserting that Yelp’s algorithm unfairly targets businesses who do not buy advertising by highlighting negative reviews.

Of course, Yelp denies these claims and asserts that marketing personnel do not have access to the algorithm. Yelp also notes that businesses are free to set up an account and “claim” their page. Claiming a page allows an establishment to monitor its reviews and to dialogue with reviewers both publically and privately. Opening an account is an easy way for businesses to defend themselves against negative reviews on the very same platform that the negative reviews surface. Businesses can also be proactive and ask satisfied regular patrons to review them on Yelp.

Disgruntled business owners have little recourse against Yelp unless they can prove that the website itself is actively violating the law. Though some businesses have tried to hurt Yelp by filing complaints with the FTC, unless they can prove that Yelp is contributing to unprotected speech, the businesses are out of luck. Section 230 of the Communications Decency Act protects Yelp; the Good Samaritan provision immunizes interactive computer services who publish third-party content. This means that businesses receiving negative reviews cannot hold Yelp legally liable for the comments. Instead, the businesses must target the individual reviewers if they wish to recover damages. According to the Wall Street Journal, Yelp receive s an average of six subpoenas a month, and many of them are linked to civil lawsuits.

. . .

CONCLUSION

A proposed national test solidifies First Amendment protection for anonymous speech online by considering the context and content of speech. Implementing a uniform test for unmasking anonymous commenters would provide legal stability that is not dependent upon technology but instead looks to the core principles that support free expression. Anonymity, in itself, is not always harmful either online or off-line, and it should continue to enjoy robust constitutional protection. The Court has recognized that cloaking has productive uses and may be used to fruitfully counter majority’s views. Dissent theory shows the important role anonymity  plays in the democratic process, a role that has many societal benefits.

A national test would also alleviate some of the current jurisdictional issues that arise when courts address speech on the Internet. Tests that do not properly weigh the importance of protecting masked speakers place First Amendment rights in peril and also impede the due process of law. The ruling in Yelp v. Hadeed shows that some unmasking standards currently in use currently tip the balance in favor of plaintiffs.

Of course, the right to anonymity is not absolute, and courts can rescind anonymity if it insulates those who utter words beyond the scope of First Amendment protections. Appropriate tests must balance the needs of society against the individual’s constitutional right to anonymity. A national unmasking standard, such as the one outlined above, would help ensure that courts correctly strike this balance in future cases.

FULL SOURCE WITH REFERENCES

( *** ) David McKee MD V. Dennis K. Laurion

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