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Virginia Court Confirms Standard for Revealing Identities of Anonymous Online Defamers

March 10, 2014

Recent Happenings in APRM
February 2014

The Court of Appeals of Virginia recently issued a decision requiring the social-networking business review website Yelp to reveal the identities of seven anonymous reviewers who posted comments critical of a local carpet cleaning company. 

The suit began in July 2012, when Hadeed Carpet Cleaning, Inc. (Hadeed) filed a complaint in a Virginia circuit court against the authors of seven critical reviews in which the authors had implicitly or explicitly held themselves out as Hadeed customers (the Doe defendants). Hadeed alleged in its complaint that it had attempted to link the Doe defendants with its customer database, but found no matches. Accordingly, Hadeed asserted that the Doe defendants were falsely representing themselves to be customers of Hadeed and that the reviews were defamatory because "they falsely stated that Hadeed had provided shoddy service to each reviewer." Shortly after filing its complaint, Hadeed issued a subpoena duces tecum to Yelp seeking documents unveiling information about the authors of each of the critical reviews at issue from Yelp's administrative database. After several rounds of objections from Yelp, in November 2012, the circuit court ordered Yelp to comply with the subpoena duces tecum. Yelp informed Hadeed that it would protect its users' rights by not complying with the circuit court's order. The circuit court held Yelp in civil contempt and Yelp appealed. 

The Court of Appeals held that in Virginia, a plaintiff seeking to uncover the identity of an anonymous Internet speaker must follow the procedure set out in Va. Code § 8.01-401.1 by showing a circuit court that:

  • (1) notice of the subpoena has been given to the anonymous defendant via the Internet service provider;
  • (2) either (a) statements by the anonymous defendant are or may be tortious or illegal or (b) there is "a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit is filed";
  • (3) reasonable efforts undertaken to identify the anonymous defendant have been unsuccessful;
  • (4) the anonymous defendant's identity is important, centrally needed to advance the claim, related to a claim or defense, or is directly relevant to a claim or defense;
  • (5) no pending motion challenging the lawsuit's viability exists; and
  • (6) it is likely the entity to whom the subpoena is addressed has responsive information. 

Yelp had urged the court to adopt authorities from other jurisdictions holding that the First Amendment requires a showing of merit on both the law and the facts before efforts to identify an anonymous speaker through a subpoena duces tecum will be enforced. To bolster its argument, Yelp relied on two hallmark precedents: Dendrite Int'l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. 2001) and Doe v. Cahill, 884 A.2d 451 (Del. 2005). In Dendrite, an intermediate appellate court in New Jersey articulated a four-part test for a plaintiff seeking to uncover the identity of an anonymous defendant: the plaintiff must (1) provide notice to the anonymous defendant; (2) identify the exact statements which are alleged to constitute defamatory speech; and (3) "produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant"; then, the court must (4) balance the First Amendment rights of the anonymous defendant against the "strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity." Dendrite,775 A.2d at 760-61. In Cahill, the Supreme Court of Delaware adopted a "modified Dendrite standard" requiring a plaintiff to (1) make reasonable efforts to notify the anonymous defendant and (2) satisfy a summary judgment standard on its defamation claim. Cahill, 884 A.2d at 461.  Both the Dendrite and Cahill courts stressed the importance of finding a standard striking an appropriate balance between one's constitutionally protected right to speak anonymously and another's right to protect his reputation.    

In light of the standard for discovering the identity of persons who communicate anonymously over the internet already set forth in Va. Code § 8.01-407.1, the court rejected Yelp's argument that it should adopt and apply persuasive authorities from other states. Noting that Virginia's General Assembly considered these and other persuasive authorities in drafting Va. Code § 8.01-401.1, the court applied the "unmasking standard" established in that section to Hadeed's subpoena duces tecum and found that the circuit court had not abused its discretion in enforcing Hadeed's subpoena duces tecum. The court concluded that Hadeed's assertion that it thoroughly reviewed its customer database to determine whether the reviews were written by actual customers was sufficient "to show that the reviews are or may be defamatory, if not written by actual customers of Hadeed." Moreover, the court found that Hadeed's evidence was enough to show that it sought the subpoena duces tecum under the required "legitimate, good faith" belief that the reviews were defamatory. See Va. Code § 8.01-407.1(A)(1)(a).    

Senior Judge James W. Haley Jr. wrote separately to indicate his agreement that the standard set out in Va. Code § 8.01-401.1 provided the proper "path of analysis" for Virginia courts presented with this issue. However, in Judge Haley's view, Hadeed's evidence could amount to no more than a conclusion that the communicators may not have been customers and if that was true, the substantive statements may be tortious. On these facts, Judge Haley would have reversed the trial court's finding of civil contempt and quashed the subpoena duces tecum, giving greater weight to protections afforded to anonymous online posters by the First Amendment.             

This decision departs meaningfully from Dendrite, Cahill, and their progeny and illustrates that under the Virginia statute, companies seeking to unveil the identities of anonymous online communicators will face much lower hurdles. It remains to be seen whether this decision will embolden attempts to bring similar disputes under Virginia's less rigorous standard or whether courts in other jurisdictions will follow Virginia's lead.       

Crowell & Moring argued a similar case on February 25 in Pennsylvania's intermediate appeals court. In that case, our client was defamed by two pseudonymous letters e-mailed to a customer, accusing the company of violations of federal law. We traced the Google e-mail account to a competitor, which ultimately admitted that the letters were written by an employee acting in the scope of his employment. In our suit against both the employer and John Doe, the trial court granted our motion to compel discovery of the employee-author's identity. It held that the letters constituted commercial speech, unprotected by the Pennsylvania standard announced in Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. 2011). The decision of the Pennsylvania intermediate appeals court is pending.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Clifford J. Zatz
Partner – Washington, D.C.
Phone: +1.202.624.2810
Robbie Rogart Jost
Counsel – Washington, D.C.
Phone: +1.202.624.2556