FOCUS ON FOIA
Dick Hammerstrom, a local news editor at The Free Lance-Star, is an advocate for open government and serves on several statewide organizations that urge transparency.
Anonymous commenter case goes to Virginia Supreme Court
People who comment anonymously on the Internet have First Amendment protections—unless those comments are defamatory or dishonest.
At least, that’s what the Virginia Court of Appeals seems to be saying in a case headed to the Virginia Supreme Court on appeal.
The issue—under what circumstances anonymous commenters can be unmasked—is being watched closely by news organizations and other outlets that have an interest in continuing vigorous commenting on their websites.
The dispute involves Yelp, a popular business review website, and Hadeed Carpet Cleaning Inc., a Springfield-based business.
In 2012, Yelp displayed approximately 75 reviews of the cleaning service. Hadeed said that, after checking its customer records, it believed seven critical reviews were not from actual customers, but from people who had falsely represented themselves. In addition, the company alleged that the comments were defamatory.
Hadeed filed suit, seeking $1.1 million in damages, and issued a subpoena seeking information from Yelp about the identities of the seven authors of negative reviews. Yelp resisted and was cited for contempt of court by the Alexandria Circuit Court for refusing to honor the subpoena.
The next stop was the Virginia Court of Appeals, which upheld the Circuit Court’s ruling. Yelp then appealed to the Virginia Supreme Court, which agreed last month to hear the appeal.
This is the first such case in Virginia, so there is no legal precedent at the state level.
The appeals court opinion makes clear that anonymous commenters have First Amendment rights.
“An Internet user does not shed his free speech rights at the log-in screen,” says the opinion, written by Judge William Petty. “The right to free speech is assiduously guarded in all mediums of expression, from the analog to the digital.”
But this case comes down to the “The Rights of the Anonymous Speaker vs. The Right to Protect One’s Reputation,” as one subheading reads.
The freedom of speech—and within this, the freedom to speak anonymously—is not absolute. “Our constitutional guarantees of free speech, as we have seen, protect expressions of opinion from action for defamation. Those constitutional guarantees have never been construed, however, to protect either criminal or tortious conduct.”
That said, anonymous commenters come in all kinds of attitudes.
They can be cranky and clever, snarky, silly and sometimes totally uninformed; occasionally insightful, but often contradictory. Recently, one commenter demanded more transparency in newspapers from Focus on FOIA—using a phony alias. So much for their transparency.
Comments are sometimes defamatory, too. Political stories will draw rants from liberals and conservatives. Each side, of course, thinks they’re right. A story about guns will have the Second Amendment crowd dueling with gun control folks. Some commenters are seemingly angry about everything.
Arguments may be predictable and tiresome, but at least they bring more voices to the issues and let us know there are people reading and reacting to our stories.
Many sites—including fredericksburg.com—have guidelines: Be respectful, no personal attacks, avoid offensive, vulgar, abusive, hateful or defamatory language. But not everyone adheres to them.
Federal laws, approved when the Internet was in its infancy, protects sites such as this one and Yelp. Section 230 of the Communications Decency Act of 1996 says that Internet service providers or hosts, such as this website, are not responsible for third-party content. So if a commenter defames someone or fabricates allegations, the victim of the accusations can take legal action against the commenter—not the host or provider.
And that’s why the carpet cleaning business went to court to obtain the identities of the anonymous commenters.
Virginia legislators (likely including some who’ve been lampooned by anonymous commenters) anticipated cases such as the Yelp litigation.
In 2002, the General Assembly instituted a law that outlines procedures to reveal an anonymous commenter in Code of Virginia section 8.01-407.1: Identity of persons communicating anonymously over the Internet.
The statute illustrates each step of the legal process to unmask commenters. http://leg1.state.va.us/cgi-bin/legp504.exe?000+coh+8.01-407.1+703051
The constitutionality of that statute may become an issue for the Supreme Court to deal with, along with other issues raised by Yelp in its appeal. Yelp has listed eight errors it asserts the appeals court made in its recent decision.
The ruling by the three-judge panel was not unanimous. Senior Judge James W. Haley Jr., a former Stafford County circuit court judge, agreed with the majority that that the procedures granting the circuit court the jurisdiction over such subpoenas were proper.
But Haley wrote that “supporting material”—evidence that the seven commenters were not actual customers—was not enough to justify a subpoena.
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