The litany of complaints doctors have compiled against Yelp is long. Frustration is based on (a) filtering of reviews – many of which are positive; (b) the perception (right or wrong) that refusal to purchase advertising on Yelp leads to score manipulation; and (c) Yelp appears to “prioritize” reviews of those who post frequently (“Yelpers”) and is perceived to be a non- level playing field.
Hadeed Carpet Cleaning, Inc. had had enough.
He noticed 7 anonymous reviews on Yelp which slammed his business. He asked Yelp to help identify who wrote these reviews, because, after checking his database, he could find no record the negative reviewers were Hadeed’s customers. Yelp fought the subpoena. Hadeed moved to hold Yelp in contempt of court. The circuit court agreed with Hadeed and imposed monetary sanctions and awarded attorney’s fees. Yelp appealed.
On page 17 of the Virginia Appellate Court decision Yelp v. Hadeed are the words:
“We find Yelp’s argument unpersuasive.”
While it is difficult to sue an anonymous poster for defamation (and we generally recommend against it), businesses are able to do so. Procedurally, they file a “John Doe lawsuit.” Using that strategy, the defendant is labeled as “John Doe,” John or Jane Doe will presumably will be re-labeled as a named defendant after the identity is unmasked through discovery.
Note: In a John Doe lawsuit, the review site is not a defendant. The review site is not a named party. Web platforms are essentially immune from defamation litigation based on a long standing federal law, Section 230 of the Communication Decency Act.
John Doe lawsuits are not easy to prosecute. They are expensive, time-consuming, and an uphill struggle. To even get started, you have to make a prima facie claim of defamation – a published false statement which damages reputation. Statements of opinion are not considered defamatory. So, if someone writes “I think Dr. X is a butcher”, that is generally considered a statement of opinion. In most states, that statement would not allow a John Doe lawsuit to get out of the starting gate. In most states, “I think Dr. X is a butcher’ is not considered defamatory.
Now, Virginia has upset the status quo. The Virginia Appellate Court wrote that unmasking the identities of anonymous posters needs to balance rights of free speech with rights of defendants to avoid being defamed. While statements of opinion are protected, some statements of opinion posted by non-clients are not protected. The Virginia Appellate Court concluded if you represent you are a client and you are not, then your opinion is not treated as a “statement of opinion.” It is treated as a false statement. And a business can move forward with a John Doe lawsuit.
Here, Hadeed stated he made an effort to identify the names of the posters – and, in good-faith, concluded, the posters were not clients. He had no other way to further identify the posters without Yelp’s participation. Yelp fought this tooth and nail. The court concluded that based on Virginia unmasking statutes, Yelp must produce documentation to assist Hadeed in the discovery process.
What does all of this mean?
First, while an appellate court decision is a big deal, I would not be shocked if this case is appealed to the Virginia Supreme Court. That Court is not obligated to take the case. But, if it does, the outcome could change.
Further, as the appellate decision noted, different states have different requirements for unmasking identities in defamation lawsuits. Some are much more restrictive. Hadeed’s decision applies to Virginia. But, for the moment, it is binding precedent in that state.
Finally, if you have a good faith belief that, after doing a reasonable investigation, negative reviews were posted by non-clients, and your business is based in Virginia, that suffices to file a John Doe lawsuit to unmask the identity of an anonymous poster.
We still believe it makes more sense not to file defamation lawsuits except in the most unique circumstances. The better strategy is to deputize your clients (and patients) to post their experiences. The solution to pollution is dilution. eMerit is our offering which helps clients obtain point-of service reviews so the public has a more representative picture of a doctor’s practice. It helps the public find the best doctors – and allows the best doctors to be found online.
Yelp cannot be pleased with the Virginia Appellate Court’s conclusion. I’m guessing this is not the last we’ve heard of this case and potential floodgate of new cases in the twenty-plus states that have no anti-SLAPP laws. (More on that in a different post….)