People who post anonymous reviews are entitled to the same protections as political bloggers or anyone else who doesn't wish to reveal his or her name, the digital rights group Electronic Frontier Foundation argues in new court papers.
The EFF makes the argument in a friend-of-the-court brief filed on behalf of Yelp, which is fighting to keep the users' identifying information confidential from Hadeed Carpet Cleaning, a small business based in Alexandria, Va.
Hadeed is trying to unmask seven people who gave the company poor reviews on Yelp.
One commenter accused Hadeed of shrinking a carpet, while another took issue with Hadeed's prices, according to court papers.
Hadeed argues that those people actually were competitors, not consumers, and that their reviews are libelous.
An appellate court recently sided with Hadeed and ordered Yelp to turn over information that would identify the users, on the theory that the reviews might be defamatory -- if they weren't written by customers.
That court also said that the comments were “commercial speech,” not editorial speech. Courts typically take the view that commercial speech -- usually ads -- doesn't have the same protection from censorship, as editorial speech.
Yelp, represented by Public Citizen, is appealing that ruling to the state's Supreme Court.
The EFF argues in its friend-of-the-court brief that people's right to free speech includes the right to make posts anonymously. What's more, the group says, many people who post on Internet platforms do so because they believe their identity is secret. “Particularly in the online context, anonymity is often at the core of the decision to participate in the marketplace of ideas,” the EFF argues in its friend-of-the-court brief.
The EFF also takes issue with the idea that a Yelp review is commercial speech. “If a Yelp review -- even a strongly negative one like 'Hadeed shrunk my carpet' -- is solely economic in nature because it refers to a business transaction, so too is a respected film critic’s 'thumbs down' verdict because it has the potential to diminish the movie’s box office,” the EFF says.
Meanwhile, it's hard not to wonder what Hadeed really stands to gain from this lawsuit. If Hadeed wins the battle to learn the commenters' identities, and they turn out to be competitors, it's questionable whether the company would be able to win much in a libel lawsuit against them.
On the other hand, if it turns out that the commenters are not competitors, the company will have unmasked its own customers for nothing -- except to upset them. It's hard to see how that's a good strategy for managing reputation.