Is there a right to be “anonymous” when posting customer reviews? The U.S. Constitution supports “anonymous pamphleteering,” but defamatory speech falls outside of First Amendment protections. So, what is a negative online customer review? Pamphleteering or defamation?

In Yelp! Inc. v. Hadeed Carpet Cleaning, Inc., Hadeed, an owner of a cleaning service believed that negative reviews were authored by a non-customer, so he invoked Virginia’s “unmasking statute” that addresses anonymous communications that may be “tortious or illegal.” Va. Code § 8.01-407.1. He needed to find out who authored the scathing articles on Yelp! So, he subpoenaed Yelp! to produce documents in order to obtain the full name, gender, birthdate, IP address or email address of the authors of the reviews in question.

Yelp! refused to comply and the circuit court held Yelp! in contempt. Yelp! appealed, and the Court of Appeals affirmed the contempt holding. 752 S.E. 2d 554, 62 Va. App. 678 (Va. Ct. App. 2014). Yelp! then appealed to the Virginia Supreme Court. Those who follow the law of customer reviews were excited to see what the court would say in this case. Many amicus briefs were filed by interested parties seeking to protect the anonymity of customer reviews, and the Constitutional arguments were front and center in those briefs.

On April 16, the Virginia Supreme Court reversed and vacated the contempt order. So, Yelp! won. It did not need to disclose the author names. However, unfortunately, the holding was based on jurisdiction and subpoena power, not on Constitutional principles. The court held that the circuit court was not empowered to enforce the non-party subpoena for production of evidence directing Yelp! to produce documents located in California in connection with Hadeed’s underlying defamation action against the John Doe defendants in the Virginia circuit court. The information sought by Hadeed was stored by Yelp! in the usual course of its business on administrative databases within the custody or control of only specified Yelp! employees located in San Francisco, and thus, beyond the reach of the circuit court. Although the General Assembly had expressly authorized Virginia courts to exercise personal jurisdiction over nonresident parties, it has not expressly authorized Virginia courts to compel nonresident non-parties to produce documents located outside of Virginia.

Thus, the “jury is still out” when it comes to the Constitutional issue of, if the court had had the power to compel the documents, could it have done so under First Amendment principles?