In our previous blog post, we reviewed the history and the importance of the First Amendment right of anonymous internet speech.  In this post, we address the scope of this right, and how it is not absolute.  Speech amounting to tortious or criminal conduct is not protected.  For example, an anonymous speaker has no First Amendment right to engage in obscenity, libel, copyright infringement, misleading or commercial speech, or use of “fighting words.”  Those harmed by unlawful anonymous internet speech have a right to seek compensation for their injury.

A common pattern in these anonymous speech cases involves anonymous speakers sued as “John Doe” defendants.  In such cases, a plaintiff typically sues the unknown John Doe and subpoenas John Doe’s internet service provider (“ISP”) or a website owner to obtain identifying information about the speaker.  In situations where the ISP or website notifies the John Doe, the speaker often files a motion to quash the subpoena to protect their anonymity.  Before courts allow the unmasking of a speaker, they must balance the plaintiff’s right to prosecute the suit with the defendant’s right to speak anonymously.  Courts have taken a number of approaches to balanced these competing interests.

Commercial speech is not protected:  The Ninth Circuit Court of Appeals addressed the issue of First Amendment protections for online commercial speech in In re Anonymous Online Speakers, 661 F.3d 1168 (9th Cir. 2011).  This case stemmed from a longstanding commercial dispute between Quixtar (successor to Amway) and Signature Management Team (“Signature”) which was made up of former independent business owners in Quixtar.  Quixtar claimed that Signature engaged in an online smear campaign against their organization and attempted to lure away Quixtar members to Signature’s competing business.  Quixtar alleged that several anonymous online postings and blogs directed at them were defamatory and disparaging.

Suspecting a link between Signature and the anonymous postings, Quixtar sought discovery of the identities of those individuals responsible for the blogs.  This discovery dispute was eventually decided by the Ninth Circuit.  In its analysis, the Court stated that, “in discovery disputes involving the identity of anonymous speakers, the notion that commercial speech should be afforded less protection than political, religious, or literary speech is hardly a novel principle.”  Id. at 1177.  The Court found that Quixtar was entitled to disclosure of the offending bloggers’ names.

Defamatory speech is not protected:  In Hadeed Carpet Cleaning, Inc. v. Yelp, Inc., 62 Va. App. 678, 752 S.E.2d 554 (2014), a rug cleaning company brought a business defamation suit against seven anonymous reviewers from the website Yelp.  Hadeed subpoenaed Yelp to obtain the anonymous posters’ information, maintaining that according to his customer records these people had never actually used his service.  Yelp opposed the subpoena, but the Court of Appeals of Virginia held that Yelp should be required to turn over documents that reveal information about these seven reviewers.

In reaching their decision, the Virginia Court of Appeals closely analyzed First Amendment rights on the internet:

An Internet user does not shed his free speech rights at the log-in screen. The right to free speech is assiduously guarded in all mediums of expression, from the analog to the digital. The anonymous pamphleteer has the right to distribute literature without the looming specter of government interference. Similarly, the anonymous speaker has the right to express himself on the Internet without the fear that his veil of anonymity will be pierced for no other reason than because another person disagrees with him.

Id. at 691, 752 S.E. 2d at 560.  The Court went on to point out that since the speech at issue was commercial speech, the anonymous reviewers’ “right to anonymity is subject to substantial governmental interest in disclosure.”  Id. at 692, 752 S.E. 2d at 561.

The Court in Hadeed also emphasized an important exception to First Amendment protection of anonymous speech:  a false statement will not be protected as a true statement would be.  The plaintiff had done his due diligence with respect to determining that the reviewers were not actual customers, so the Court applied the false statement analysis:

Generally, a Yelp review is entitled to First Amendment protection because it is a person’s opinion about a business that they patronized. But this general protection relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, in that the reviewer was never a customer of the business, then the review is not an opinion; instead, the review is based on a false statement of fact—that the reviewer is writing his review based on personal experience. And ‘‘there is no constitutional value in false statements of fact.’’

Id. at 705, 752 S.E.2d at 567.

These outcomes should serve as a warning to individuals posting anonymous commercial speech or reviews online, as there are limits to free speech and consequences to misconduct.  Individuals subject to on line reviews and postings that are false do have recourse.

 

Written:  9/22/14

Approved 10/07/14

Published:  10/20/14

Categories:  Technology, Business Litigation, Commercial Litigation, General Litigation

Key Words:  First Amendment; anonymous speech; anonymous internet speech; anonymous review; defamation; Yelp

Title:  How Broad is the Right to Post Anonymously on the Internet?

Description:  The scope of the right to anonymous speech on the internet is not absolute. Speech amounting to tortious or criminal conduct is not protected.

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