Guest Host: Marc Fisher

Anonymous reviews are a staple of life on the Internet, but a recent court ruling could change that. A Virginia court told Yelp to name a half-dozen people who wrote negative reviews about a local business. The business claims the naysayers weren’t real customers, but Yelp says divulging personal information violates the users’ First Amendment rights. We discuss what the ruling means for consumer reviews and anonymous speech online.

Guests

  • Ramsey Poston Spokesperson, Hadeed Carpet Cleaning; senior counsel, Dominion Strategies
  • Vince Sollitto Vice president, communications, Yelp.
  • Bruce Davis Attorney, Bean Kinney & Korman attorneys
  • Paul Levy Attorney, Public Citizen

Transcript

  • 12:18:19

    MR. MARC FISHERWelcome back. I'm Marc Fisher of The Washington Post sitting in for Kojo Nnamdi. Well, if you're still reeling from a bad consumer experience, you might want to think twice before channeling your negative energy into an online rant. Or at least be prepared to give up your real name if the business doesn't take kindly to your review. A Virginia court is directing the online review site, Yelp, to reveal the identities of several users who wrote negative reviews on the page of a local business. The company, Hadeed Carpet Cleaning, says its critics were never customers at all. The court ruling is raising questions about how the First Amendment applies to consumer reviews and anonymous speech online.

  • 12:18:59

    MR. MARC FISHERAnd here to discuss the issue with us, Paul Levy is an attorney with the consumer advocacy group, Public Citizen. He argued the case on behalf of Yelp. Thanks for joining us.

  • 12:19:07

    MR. PAUL LEVYThanks for having me.

  • 12:19:09

    FISHERAnd Bruce Davis is an attorney with Bean, Kinney & Korman in Arlington, which represented Hadeed Carpet Cleaning in its case against Yelp. Thanks for being here on a potentially snowy day.

  • 12:19:22

    MR. BRUCE DAVISThank you, Paul. Or Mark.

  • 12:19:23

    FISHERSo, let's start with Paul Levy. The internet is full of anonymous speech, and at the bottom of most stories, you see comments in any online forum. And, of course, on consumer review sites like Yelp. But are there limits that are clear about what can be said under the cloak of anonymity?

  • 12:19:43

    LEVYWell, yes. I mean, as in the real world, you can't intentionally make false statements of face about people. And what Public Citizen has been doing over the last dozen years is going from state to state, asking state courts to strike a balance that protects the right of people to speak anonymously when they're either just expressing their opinions or when they're saying truthful things about businesses, while making sure that businesses, that really have been defamed, have an opportunity to get redress in the courts.

  • 12:20:15

    FISHERYou can join our conversation by calling 1-800-433-8850, or email us at kojo@wamu.org. Let us know if you think we still have a right to remain anonymous online. What about you when you write a review? Do you think you should have to prove that you are, indeed, a real customer of the business that you're writing about? And Bruce Davis, you represented Hadeed Carpet Cleaning in this case against Yelp. Was it your sense, or Hadeed's sense, that indeed there were people who were posting negative reviews and who had never, in any way, had anything to do with that company.

  • 12:20:50

    DAVISThat's the basis of our case. The reason that Hadeed sued was that he concluded, by trying to match up the customer comments with the records of service he provided, he concluded that the anonymous reviewers were not customers. And by posting reviews online, the anonymous reviewers gave the impression that they were customers, that they had personal experience with Hadeed, and that those reviews were negative.

  • 12:21:21

    FISHERAnd just a point of clarification, how could you know, if these were anonymous reviewers, how could you know that they weren't customers?

  • 12:21:29

    DAVISYou cannot know for absolute certainty, but you can match -- what Hadeed did was they tried to match the customer comments with known customers. And they concluded that these people probably were not customers and the courts concluded that Hadeed had a legitimate and good faith basis for concluding that these anonymous posters had never been customers. And if they weren't customers, they had no business coming onto the internet and posting negative comments about Hadeed. Because it would not be based on any personal knowledge or experience they had.

  • 12:22:05

    FISHERPaul Levy, is there a right to go on the internet and post comments, negative or positive about some business you never had anything to do with?

  • 12:22:14

    LEVYThere certainly is. Now, to be fair, Hadeed's argument here is that these people claim to be customers and his representation is that it had reason to believe that they were not. Unfortunately, what Hadeed has never explained to anybody, not to the court, not to Yelp, not to us, to be sure, is what reason they had to think they weren't customers. What reasons could they find in their database that could give anybody any assurance that there's reason to believe they aren't customers, other than Mr. Hadeed's own say so.

  • 12:22:49

    LEVYWe think that the burden of showing likelihood of falsity ought to be on the person who wants to take away the right to speak anonymously. Now, it may well be that there's enough data in that consumer database that would allow Hadeed to draw a conclusion that a court could independently verify is a reasonable basis for thinking these aren't customers. But the fact is that what these people said about Hadeed is the same thing that dozens of other people, who haven't been sued on the theory that they aren't customers, have said about Hadeed.

  • 12:23:20

    LEVYThat is to say that it engages in bait and switch tactics. I mean, if you look at the Washington Consumer Checkbook, their recent survey of local carpet cleaning companies, they found that Hadeed has among the lowest fraction of satisfied customers in the area.

  • 12:23:36

    FISHERWell, whatever the merits of their carpet cleaning, I mean, the issue here is whether you're allowed to go on the internet and rip a company without presenting any evidence of who you are or that you are a customer. Is there a Constitutional Right, and should there be a Constitutional Right, to speak anonymously about a business?

  • 12:23:56

    LEVYYes.

  • 12:23:57

    FISHERWhy?

  • 12:23:57

    LEVYThere certainly is. The right to speak anonymously is a long cherished tradition in our American system. I'm not comparing these reviewers to Shakespeare or to the authors of the Federalist Papers, or, indeed, to Mark Twain, who, after all, was Samuel Clemens writing under a pseudonym. But the Supreme Court has long recognized that people have the right to speak anonymously, that the choice of whether to give your name is one of the choices that an author makes in sort of filling out his comments. And if a company like Hadeed wants to take that right away, they need to come in with some evidence of falsity, and not just the fact that they believe in falsity.

  • 12:24:39

    FISHERBut shouldn't the burden be, at least in part, also on the commenter or reviewer, since they are anonymous? Shouldn't they, therefore, have a higher hurdle and not put the burden entirely on the company that's being criticized?

  • 12:24:52

    LEVYWell, under our system of the First Amendment, before you recognize a -- before you take away the right to speak anonymously, there has to be a compelling government interest. And then the question is, is there a compelling government interest in taking away the right to speak anonymously when all a company shows is that they've filed a complaint, that they have a belief, and let's assume that it's a genuine, good faith belief. But is a genuine, good faith belief, in falsity, enough reason to take away somebody's First Amendment right to speak anonymously?

  • 12:25:29

    LEVYWhat other states have said, the other states in which we've litigated this issue, they've said no, that they burden is on the plaintiff to come forward with evidence. And we think that Virginia should join the other states in recognizing that the First Amendment requires this.

  • 12:25:46

    FISHERWell, we don't normally take anonymous phone calls on WAMU, but given the subject matter here today, we're going to, in this case, with a caller from Falls Church, Virginia. And you're on the air.

  • 12:25:55

    UNIDENTIFIED FEMALEYes, hello.

  • 12:25:57

    FISHERFirst of all, why are you anonymous?

  • 12:27:55

    FEMALEI'm anonymous because I'm one of the people, the real people that filed, or not filed, but posted on Yelp about my factual, actual service with Hadeed, to warn other customers of the poor service they had given me. And now I'm wrapped up in this case. You know, in my life, I've posted one time on Yelp, which is kind of ironic. I'm a believer in First Amendment rights. I'm a teacher. I'm an upstanding citizen. There's no reason I would lie for any business, you know, for or against.

  • 12:25:55

    FEMALEOne time in my life, I posted on Yelp against Hadeed, and now I'm wrapped up in this case.

  • 12:26:38

    FISHERAnd you posted -- why did you post, initially, anonymously, rather than putting your name there?

  • 12:25:55

    FEMALEWell, on Yelp, I guess that you have to make like an account, and then your acronym, or pseudonym, or something shows up, so they know that much about you, whether or not they know your personal information. So...

  • 12:26:54

    FISHERSo, are you saying it was not your choice to be anonymous?

  • 12:26:55

    FEMALEI think that's just the Yelp system. They -- your name just comes up, whatever you chose as like your username.

  • 12:27:03

    FISHERRight. Right.

  • 12:27:03

    FISHERSo, it could be related to your name. It could be not related to your name. So, Yelp has that much information about you. And they know where you are, because they know where your city is. And they know where you're posting from.

  • 12:27:13

    FISHERSo, but you could have chosen your real name as your username.

  • 12:27:16

    FEMALEYeah, and, in fact, my real name is my username. So, there's absolutely no...

  • 12:27:23

    FISHERSo you were not anonymous in your comments.

  • 12:28:00

    FEMALEYeah, I mean, I think it's my first name and the first letter of my last name. So, I think they could figure out, based on -- you said before that Hadeed had gone through their files to match up the Yelp accounts with their accounts. And there's absolutely no reason that they wouldn’t be able to find me, because I mentioned very specific details, in my account, of what they, of the poor service they had provided to me. And, you know, a time frame. There's no way that they couldn't have figured that out, so the case just seems bogus to me. It just seems like they're trying to sue Yelp, I guess, so that their bad services get covered up.

  • 12:28:00

    FISHERWell, hold on a second. Let's hear from Bruce Davis, the attorney for Hadeed Carpet Cleaning. Here's a woman who did put her first name out there, should have been relatively easy to match her up with your records.

  • 12:28:11

    DAVISWell, Yelp tried to, I mean, Hadeed tried to match up the records properly, but let me get to this point. The whole issue -- the whole basis of Yelp's case is we thought that these anonymous posters had never been customers, so to the caller who's calling today, I'll say to her and to anybody else who was one of the anonymous posters, if you were a customer, Hadeed will be glad to dismiss the suit as to you, and let you out of the suit, because if you have an opinion, and you express an opinion, Hadeed doesn't mind that.

  • 12:28:49

    DAVISThey don't mind criticism. What they're objecting to is defamation. So, if you've got, if you've got a problem with Hadeed, they will try to make it right. And if you were a customer, Hadeed will let you out of the lawsuit.

  • 12:29:02

    FISHERHave you been made that offer before, or is this something new that you're hearing?

  • 12:29:07

    FEMALEI guess this is something new I'm hearing. I've been sent a couple of letters and emails. It may even be from the gentleman I'm talking to now. You know, to be honest, I've got a full time job that, you know, I work a lot, and I haven't been paying attention to what's going on. I've got a friend, who's a lawyer, that said it's okay. Just, you know, the issue here is to remain anonymous. If you said truthfully what happened to you, then you're protected under First Amendment rights, as your right to speak out. And I did. I said, truthfully, I'm not a liar, I'm not gonna be somebody that's trying -- that has an agenda.

  • 12:29:40

    FEMALESo, I assumed that I was protected. But now it sounds like there's a bigger issue here, which is people can't speak out without fear of getting sued.

  • 12:29:50

    FISHERAnd so, have you been in the courtroom in the proceedings? Have you watched this case going along?

  • 12:29:58

    FEMALENo. No. I've been keeping up with emails. So, I got an email just earlier this week. That's why I was so surprised to hear this on "The Kojo Nnamdi Show" today. A regular listener, and I thought, oh my God, that's my case. So, decided to call in, because it's really upsetting me, as an American, that I feel like now that anyone that I've told about this in my circle of friends or my church, people said, oh my God, I'm not going to post anything on Yelp now. I don't want to have to go through that.

  • 12:30:23

    FEMALESo, if this is the precedent that we're setting, that if you post something negative, you're gonna get drawn into a lawsuit, I don't see how your First Amendment rights are being protected.

  • 12:30:31

    FISHEROkay, well thanks for calling in. So, Bruce Davis, how did you persuade this Virginia court that, indeed, these reviewers ought to have their identities revealed? There clearly are First Amendment issues here. Generally, anonymous speech is protected. What was the difference maker in this case?

  • 12:30:47

    DAVISWell, Hadeed went through its records, and it formed a good faith belief, based on its review, it could not match up these particular complaints that were posted on Yelp with the records of service provided to customers. Hadeed does not sue customers, and if Hadeed had thought that these people who posted were its customers, Hadeed would not have sued them. So, as to any genuine customer, who's a defendant in this lawsuit, Hadeed will be happy to dismiss the suit with them.

  • 12:31:20

    DAVISAnd Hadeed values his customers, wants to take good care of its customers, and the only reason that Hadeed filed this suit is because it concluded that the anonymous reviewers were non-customers.

  • 12:31:32

    FISHERBruce Levy is an attorney with Bean Kinney & Korman in Arlington, which represented Hadeed Carpet Cleaning in its case against Yelp. And Paul Levy is an attorney with the consumer advocacy group, Public Citizen, which argued the case on behalf of Yelp. And Paul Levy, you wanted to respond to that?

  • 12:31:51

    LEVYYeah. A few things. Listening to Bruce's response to the caller, and to some of your questions, what I note is that he says over and over that Hadeed went through an investigation, but he hasn't been able to be at all specific about why the investigation enabled Hadeed to come to the conclusions that it did. And it seems to me that we at Public Citizen, I think the folks at Yelp, who are, in some ways, just stake holders in this case, and the public at large, would have been much more comfortable if, instead of just saying, well, trust us. We conducted an investigation, and it came to the conclusion Hadeed had provided a more specific explanation so that we could be comfortable that not only does Hadeed think this, but that a court thinks that there's reason to think this.

  • 12:32:46

    LEVYSo, that's one point. Second point is, it's good to hear Bruce say that Hadeed isn't going to sue its customers, cause previously what Hadeed had said was, well, first we'll find out whether they're customers, and then we'll see, which is a lot less reassuring to people like the recent caller. And the third point that I would make is that Hadeed could easily have communicated with each of the people whom it's suing. Yelp has a private messaging system. I've reached out to each of the Does in this case to communicate with them privately about the existence of the case.

  • 12:33:23

    LEVYI think that's probably what the caller is referring to.

  • 12:33:28

    FISHERYou reached them through this private messaging system that Yelp has? So, do you still not know who they are?

  • 12:33:33

    LEVYI know who some of them are. I've been in touch with some of them. I wish I were better at recognizing voices to know whether I've been in touch...

  • 12:33:42

    FISHERSo, you're representing people -- you don't even know who they are.

  • 12:33:44

    LEVYNo, I'm not representing individual people. If I were representing the Does, of course, I would have to get much more specific information about them. I'm representing Yelp in this case.

  • 12:33:55

    FISHERBut, essentially, on behalf of people whose identities you don't know.

  • 12:33:59

    LEVYYelp is asserting the First Amendment rights, of its users, to remain anonymous. But I don't need to have street and address information. I don't need to have a retainer agreement with these individuals, as I would, if I were representing -- and frequently, in these cases, I do represent the Does. And in those cases, of course, then I have names and addresses.

  • 12:34:18

    FISHERBy Does, you mean John and Jane Doe. Just sort of anonymous people.

  • 12:34:20

    LEVYThat's right. The anonymous speakers I refer to, generically, as Does. Sometimes you refer to them as their pseudonym. And for example, I represented an orthodox woman who was a blogger. Her blog name was Orthomom.

  • 12:34:33

    FISHEROkay.

  • 12:34:34

    LEVYAnd so we referred to her, in the papers, as Orthomom.

  • 12:34:36

    FISHEROkay. Let's go to Daniel in Arlington. Daniel, you're on the air.

  • 12:34:42

    DANIELHello. I just wanted to sort of say, in my dealings with Yelp, I sympathize with your last caller, but I'm in the hospitality industry, and I've been overly exposed to both the negative and positive Yelp reviews. I've used it a ton to support other people, other friends' businesses, and I've seen numerous instances where I actually could understand how the quote end quote investigative process may seem confusing, but it isn't actually too difficult to pair a negative review with a potential client or with a previous client, or someone who didn't come in when you can go through your stats and realize that an incident simply hadn't occurred.

  • 12:35:18

    DANIELI think the bigger problem, though, is that Yelp, as a company, may be a little bit more indefensible than a couple anonymous posters putting negative reviews. Yelp does no background checks or -- and requires no accreditation from the people making posts, so you can have a competitor come in and give a biased review, and then Yelp will simply have to cover for them, even that would be considered defamation by many other standards.

  • 12:35:41

    FISHEROkay.

  • 12:35:43

    DANIELIs the problem with this really more -- I guess what I'm saying is I think the problem here is a little bit more that Yelp as a company, or as an entity, is not necessarily in the business of protecting people -- protecting honest reviewers. They're in the business of giving anonymity to anybody who wants to get it. It's almost like a negative PR firm, basically.

  • 12:36:04

    FISHERWell, let's see what Yelp has to say about that. We have, on the line with us, Vince Sollitto. He is Vice President of Corporate Communications at Yelp. Thank you for joining us.

  • 12:36:13

    MR. VINCE SOLLITTOWell, I'm happy to be with you. Thank you very much.

  • 12:36:15

    FISHERSo, maybe you could first take on this point of the last caller. Should -- is Yelp's first allegiance to the negative reviewer, and should there be any responsibility or allegiance to the business that's being criticized? And should businesses have a way to respond to anonymous critics?

  • 12:36:34

    SOLLITTOWell, they certainly do. Yelp is a two way street. It's a dialogue platform that allows consumers to write reviews of businesses to provide information to their fellow consumers. And it gives businesses the opportunity to respond privately, as Mr. Levy recommended. Or even publicly, to dispute reviews. Frankly, we believe more information is better than less, and that's what helps the marketplace.

  • 12:36:59

    FISHERAnd so, now Yelp has obviously been dealing with this question of fake reviews for a long time. How extensive do you think that issue is? Do you have any way of figuring out -- do you make any attempt to figure that out? And do you have any system for identifying and eliminating fake reviews?

  • 12:37:19

    SOLLITTOAbsolutely. And I think what folks need to realize is that Yelp is really a branded guidebook. What we do is we try to provide recommended reviews that come from the Yelp community. And so, we go ahead and use recommendation software that takes into account all the information that we have about each individual reviewer, and their review. And that information can be anything from email address and IP address, hour of day, patterns, all types of signals that we get about that person.

  • 12:37:50

    SOLLITTOI think it's important to note, at this point, that in fact, most reviews on Yelp are not anonymous, as your first caller pointed out. Most Yelp reviewers write their first name and last initial. They go ahead and add photos. They list out their friends. They answer questionnaires. And their entire review history is laid out before you, so you can identify with that person, and decide how much you want to value that review. That, in itself, is really the true value of Yelp, is that these are not anonymous reviewers, in most cases.

  • 12:38:19

    SOLLITTOThey're actually community members.

  • 12:38:22

    FISHERSo now you have this court ruling in Virginia. Obviously, it only applies to Virginia, but it has to concern you about what could happen in other states, that is forcing you to reveal the identities of a number of these anonymous reviewers. How dangerous is that to both your business model and to the freedom of reviewers across the country, to make their views known?

  • 12:38:43

    SOLLITTOWell, I think you could hear it in the voice of your first caller. I frankly think this case has been blown wide open just on this show today, because that first caller makes virtually all of Mr. Levy's points. Which is that here you have someone who says they were a real customer of this business, and they wrote a review, and they've been sued by this gentleman. And a court said all this person had to do, in order to force the revelation of their identity, was say that he thought they weren't a real customer. And most other states provide much stronger protections for consumer privacy, And rightfully so.

  • 12:39:20

    SOLLITTOHere you have a woman, who very well may be a real customer, who wrote her real opinion, and she's being sued because the gentleman doesn't like her speech and believes she may not have been a customer. And if she tells her friends, and her friends don't believe that it's safe to comment on the marketplace, then free speech is being stifled, and I think our country suffers.

  • 12:39:43

    FISHERWell, here's kind of the Constitutional, or moral question for Yelp and other content companies. Legally, the track record of the internet, so far, has been that as someone who's just allowing people to post their views on your site, you're not held liable, generally, for the stuff, the things people say on your site. On the other hand, your whole business model is based on the credibility of people reading what they see on Yelp and taking it and finding it useful and believable.

  • 12:40:16

    FISHERSo is there -- between those two poles, where is the sweet spot where you have a certain responsibility, and even if you're not being held liable under the law?

  • 12:40:30

    SOLLITTOI'm not sure I completely follow your question.

  • 12:40:32

    FISHERWell...

  • 12:40:32

    SOLLITTOYou're actually right that platforms that publish the content provided by other users can't be held liable for that content. If that were the case, then more business owners like Mr. Hadeed cannot sue just their customers, but could sue platforms like ours, and as a result, they couldn't exist so no company could defend itself against thousands of frivolous lawsuits that were designed merely to stifle speech.

  • 12:40:56

    FISHERRight.

  • 12:40:56

    SOLLITTOOn the other hand, we certainly try to provide as much information as possible about our reviewers and their reviews so that consumers can decide which information to trust. You're right. Consumer trust is paramount to our business. And, frankly, that's why over 100 million consumers use our service every month.

  • 12:41:15

    FISHERSo ultimately do you acknowledge that you have a certain responsibility to ensure that all the reviews on your site are factual?

  • 12:41:26

    SOLLITTOThe responsibility we have is to provide the best information possible to consumers so they can decide which information they wish to use and trust, the same responsibilities that virtually every other media publication provides.

  • 12:41:42

    SOLLITTOOne other way to think about this, Marc -- and I think this is a very interesting subject here in Washington -- this concept is really very similar to a reporter shield law where you have a newspaper being sued and being asked to provide the name of what might have been an anonymous source for a negative article about a business that believes that that person has defamed them. To what degree does this person have a right to privacy when they provide information that the marketplace finds valuable?

  • 12:42:09

    FISHERVince Sollitto is vice president of communications for Yelp. Thank you very much for joining us.

  • 12:42:14

    SOLLITTOI was happy to be there. Thank you very much.

  • 12:42:16

    FISHERAnd when we come back after a short break, we'll continue our conversation with the attorneys on either side of the case between Yelp and Hadeed Carpet Cleaning. And we'll also hear from a spokesman or Hadeed Carpet Cleaning Company, and more of your calls at 1-800-433-8850. I'm Marc Fisher sitting in for Kojo Nnamdi. We'll be right back.

  • 12:44:22

    FISHERWelcome back. I'm Marc Fisher of The Washington Post sitting in for Kojo Nnamdi. And we are talking about anonymity online, in particular on Yelp and other online review sites. And we're looking at a case in Virginia in which Hadeed Carpet Cleaning faced off against Yelp over the comments of a number of anonymous reviewers -- negative reviewers.

  • 12:44:44

    FISHERAnd, Bruce Davis, an attorney who represented Hadeed Carpet Cleaning in this case, we have an email from David who say, "What remedy is Hadeed looking for exactly? Will they be satisfied to leave the negative comments up on Yelp provided the commenters are identified by name?"

  • 12:45:03

    DAVISHadeed has no problem in having customers express opinions on Yelp. Hadeed is not going to sue any customer who expresses an opinion on Yelp. So people really don't need to worry if they are customers. What Hadeed is about is protecting his reputation against anonymous posters who are not customers. Customers have a right to speak. Hadeed hopes they will speak to him because he will try to make things right. He's dedicated to community service.

  • 12:45:43

    DAVISWhat this suit is about is about critics who never got services from Hadeed posting negative comments. That is defamation, and that should not be committed. So Hadeed's interest in this is protecting his reputation against anonymous reviewers who were never customers. If a person was a customer, Hadeed isn't going to sue them and they have nothing to worry about. The -- so I want to make it clear that customers are safe to comment. Hadeed has no basis for suing them, and he indeed never would sue them.

  • 12:46:27

    DAVISOn the other hand, Hadeed does feel, in any other business, does feel a need -- or should have a need to protect its reputation against anonymous commenters who were never customers of the business.

  • 12:46:40

    FISHERAnd, Paul Levy with Public Citizen, you argued the case on behalf of Yelp. Anonymous speech, the court in Virginia stated in its majority opinion that if 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. To what extent do you think the law protects speech that is maybe not entirely truthful?

  • 12:47:04

    LEVYWell, it depends on whether -- libel law represents a doctrine called substantial truth. The question is whether the gist of the statement is false. And one of the interesting things about this case is that Hadeed has never denied that at sometimes engages in bait-and-switch tactics. Its claim here is, well, we're not sure we actually engage in a bait-and-switch tactic with this particular individual.

  • 12:47:30

    LEVYNow, if you -- if it were true that there were lots of people out there with whom Hadeed engaged in a bait-and-switch -- and I note that there are a number of people who have accused Yelp of bait-and-switch tactics on Yelp who are not subject to this lawsuit because Hadeed doesn't claim that it believes they're not customers. Then you have to wonder whether these are statements that are substantially true.

  • 12:47:57

    DAVISI...

  • 12:47:57

    LEVYBut I do want to come back to...

  • 12:47:58

    DAVISI have to object to this. I have to object to this. Paul, you're accusing Hadeed on the air of entering into bait-and-switch tactics.

  • 12:48:07

    LEVYThat is not correct.

  • 12:48:07

    DAVISAnd that is not what they do.

  • 12:48:10

    FISHERWell, you did say that they are not disavowing bait-and-switch tactics.

  • 12:48:15

    LEVYThey are not suing a number of people who have accused Yelp of bait-and-switch tactics. That is to say...

  • 12:48:23

    FISHERNot suing does not equate to admitting.

  • 12:48:27

    LEVYThat is correct. And I don't think I said that they admitted it. I think you could say that, by not suing other people who accuse them of bait-and-switch tactics and claiming that those statements are false, you might wonder if there's some implicit admission out there.

  • 12:48:43

    FISHERWell, let's...

  • 12:48:43

    DAVISNo, there's no implicit admission. The reason Hadeed did not sue some of the posters was those posters appeared to be customers. Hadeed does not sue its customers. Hadeed does not engage in bait-and-switch tactics. Hadeed is trying to protect its reputation against...

  • 12:48:59

    LEVYBruce, with...

  • 12:48:59

    DAVIS...defamatory statements by people who aren't customers.

  • 12:49:03

    LEVYNow, Bruce, I didn't -- I didn't...

  • 12:49:03

    DAVISPeople who aren't customers have no business commenting or defaming Yelp.

  • 12:49:07

    FISHEROkay.

  • 12:49:08

    LEVYBruce, I didn't interrupt you. And I'm sorry that you felt you were obligated to interrupt me in order to make your points.

  • 12:49:15

    FISHERWell, go ahead and finish that point.

  • 12:49:16

    LEVYHadeed is, in fact, suing some people who are its customers, whom he believes are not customers, as the first caller told us. But I think I'm concerned about the more general point about how entities like Yelp ought to respond to the situation of having reviews from people whom it can't be sure who they are. I think the law strikes a balance. On the one hand, the law gives sites like Yelp immunity from suit based on statements that anonymous people post on them.

  • 12:49:50

    LEVYOn the other hand, companies like Yelp retain information that will lead to the identification of anonymous posters if the business comes in with evidence of falsity. And the way we think the law properly strikes the balance is by imposing a burden on the business that wants to take away the right to speak anonymously, the burden of making a showing of falsity. And there's a final point to be made. Yes, these are sometimes anonymous reviews on Yelp.

  • 12:50:18

    LEVYAnd I rather suspect that, like most consumers -- and I'm a Yelp user. I make comments on Yelp. And I look at comments on Yelp in deciding where to go. And you always take these reviews with a bit of a grain of salt in the marketplace of ideas. It's valuable to have anonymous comments out there in the marketplace of ideas...

  • 12:50:39

    FISHERBut they're inherently less credible.

  • 12:50:40

    LEVYThey're inherently less credible.

  • 12:50:41

    FISHERWell, let's hear directly from Hadeed Carpet Cleaning. We have a spokesman for the company, Ramsey Poston, with us. Thanks for joining us.

  • 12:50:48

    MR. RAMSEY POSTONGood afternoon. And thank you for having me on this important issue.

  • 12:50:51

    FISHERWell, it's an important issue. But this has also got to be a tough spot for a company like Hadeed Carpet Cleaning which is trying to get customers all over the metropolitan area. And here you have -- you've made a decision as a company to take these folks to court. Whether they're your customers or not, you couldn't know for an absolute certainty. Why expose your company to some pretty rough publicity?

  • 12:51:15

    POSTONWell, let's look at the company itself. Hadeed Carpet Company has been in business in the community for nearly 60 years. It employs -- it has over 100 employees, and it services 35,000 residential and commercial customers every year. Sixty-five to 75 percent of their business comes from repeat business and referrals. So this is a company where it has built a very good reputation and is doing everything it can to maintain that reputation.

  • 12:51:48

    POSTONAnd another really important point here is, in many ways, this issue is much bigger than Hadeed Carpet Cleaning. This is an important issue to, I think, every small business owner in America because market -- because people should not be permitted to abuse Yelp and other online services to defame businesses. And that's what's happened here.

  • 12:52:10

    FISHERAnd what...

  • 12:52:10

    POSTONAnd -- yeah.

  • 12:52:11

    FISHERWhat makes Hadeed Carpet Cleaning believe that there are not just one or two but a number of people out there who have such an animus against the company that they decide to go online and file negative reviews with having had no connection, no experience with the company? Why is that credible?

  • 12:52:30

    POSTONWell, you know, we all want to know why people who are not customers are posting false comments on the site. And that's, I think, why this case has now been heard by two courts in Virginia, and, as you've reported here today, the Appeals Court of Virginia has upheld the Circuit Court ruling. And Yelp is currently in contempt of court. And that's why we think it's in time for them to turn over the information, so we can get these questions answered.

  • 12:53:01

    FISHERAnd what is it that you want the court to do in the end? What is the remedy here? Is it simply for you to get the names and go talk to these folks about the experience they had with your company? Or do you want these posts taken down? What do you want to happen?

  • 12:53:13

    POSTONNo, no. We want to know if -- look, as was stated earlier, Hadeed Carpet Company values input, positive or negative. And you'll see on the Yelp site that the company has been very aggressive in reaching out to anyone who comments on the company. If there is an unsatisfied customer, they personally post their phone number, their email address in regards to go out and reach out to them, find out what happened and how they can make it better.

  • 12:53:43

    POSTONAnd if they're not customers and they're posting disinformation, well, that constitutes defamation. And that's not constitutionally protected by the First Amendment.

  • 12:53:55

    FISHERSo is it your goal to punish those who are making these comments or simply to unmask the anonymous users so that you could deal with their issues? 'Cause there are other ways short of the court system to figure out users' real names. Other companies use those in other cases.

  • 12:54:10

    POSTONWell, we want to know who -- you know, why people weren't customers and they were posting these false statements about the company. And then, you know, I think, if that is the case, then we will continue to pursue legal action. However, it has been stated here earlier today, if any of these people are customers, or if any customers are posting about the company, positive or negative, we welcome that feedback. That makes the company better and stronger.

  • 12:54:40

    FISHERAnd so do you think that Yelp is insufficiently filtering out suspect reviews?

  • 12:54:48

    POSTONI think that may be a show for another day in terms of Yelp's business practices. You know, we've -- you know, since this case has gotten some publicity, we've gotten a lot of feedback from small business owners all over America who have had a lot of trouble, similar trouble, in Yelp and how it -- and how the reviews are conducted and filtered.

  • 12:55:11

    FISHEROkay. Ramsey Poston is spokesman for Hadeed Carpet Cleaning. Thanks for being with us.

  • 12:55:15

    POSTONThank you for your time.

  • 12:55:17

    FISHERAnd let's go now quickly to Lee in Bethesda. Lee, you're on the air. And I -- go ahead.

  • 12:55:25

    LEEHello? Can you hear me?

  • 12:55:25

    FISHERYep. Yes, you're on the air. Go ahead.

  • 12:55:27

    LEEYeah. I would just like to take a different tact on this problem entirely. It seems to me that the one part of (unintelligible) entirely is the consumer wanted to use the Yelp website or the (unintelligible) website. There's -- this kind of a system is designed to be gamed by those who want to game it. For instance, it's fairly well known that, in regard to rating physicians, large medical practices will have each doctor and their family rate each other doctor and get much higher scores than small medical practices.

  • 12:56:03

    LEEAnd there are at least implications that companies have been known to have their employees log on and rate their company very well and encourage them to log on and rate their competitors very lowly. And it seems to me that without some commitment by people like Yelp to at least gather the data and ask for certification without publish that certification, there's no way that a consumer can really trust the information in Yelp to the extent that this kind of gaming gets out of hand.

  • 12:56:35

    FISHERAll right. So, Bruce Davis, is anonymity here to stay in these kinds of sites such as Yelp? Is there any hope that businesses like Hadeed could have that this system will change? We have just a little bit of time left.

  • 12:56:53

    DAVISOh, I think there will be anonymous posters in the future. But a business that gets attacked by an anonymous poster has to have a remedy. And if they've got a basis for thinking that that poster wasn't a real customer, they should have a legal remedy. I would point out that, on Amazon.com, for example, you get reviewers, and Amazon's able to say verified customer. So in that case, at least one business is able to verify that a purchaser is who he says he is.

  • 12:57:25

    FISHERAnd, Paul Levy, just one last comment on this question, though. Is this system still in evolution? And is the law still evolution? Or are we going to have to figure out how to -- businesses are going to have to live with this?

  • 12:57:34

    LEVYI think it's true both that the business is in evolution and that the law is in evolution. But I want to -- and the last caller made a very important point, which is the point about positive review -- false positive reviews. No business sues the false positive reviewers. And unless we provide constitutional protection for the negative reviewers, the marketplace of ideas is going to be out of balance because it'll be only the positive reviews that remain on these sites while negative reviewers are afraid to come on.

  • 12:58:04

    FISHERPaul Levy is an attorney with the consumer advocacy group Public Citizen. He argued the case involving Yelp and Hadeed Carpet Cleaning on the behalf of Yelp. Bruce Davis is an attorney with Bean Kinney & Korman in Arlington, and he is on the Hadeed Carpet side of that case. I'm Marc Fisher of The Washington Post sitting in for Kojo Nnamdi. Thanks very much to my guests and to you for listening.

Topics + Tags

Comments

comments powered by Disqus
Most Recent Shows

The Economic Fight Against ISIS

Thursday, Oct 30 2014Experts call ISIS the best-funded non-state terrorist organization the U.S. has ever confronted. We explore how ISIS fills its coffers and how the international community is trying to shut off the funding pipeline.

Red Cross Under Fire In Storms’ Aftermath

Thursday, Oct 30 2014The Red Cross' response to Hurricane Isaac and Superstorm Sandy are in the spotlight this week after an investigation by ProPublica and NPR revealed failures by the organization in multiple areas, as well as a pattern of diverting resources for public relations purposes.

D.C.’s Punk Movement: Looking Back And Ahead

Thursday, Oct 30 2014It's a chapter of D.C.'s cultural history that's the subject of on onslaught of new documentary projects: the punk movement that took root in our area during the 1980s and 1990s. But this new wave of nostalgia has provoked tough questions too: is it overkill? Where did the creative and activist energy that fueled the art go? We ponder the past and the future of punk music in the Washington area.