Tuesday, April 29, 2014

Should Anonymous Reviews Online Be Banned?

Small businesses today are discovered and marketed very differently than they were a generation ago.  Reputation - especially online reputation - can make or break a budding enterprise.

The problem is what happens when people express extremely harsh critiques of your business in a public forum, and do so anonymously?  Are such anonymous reviews a protected form of free speech?  Or, because their authenticity cannot be ascertained, do businesses have a right to "unmask" the website's users - especially in cases of defamation?

The Virginia Supreme Court is about to answer these questions.  A case has arisen where a business named Hadeed Carpet Cleaning, Inc. filed a lawsuit against seven individual Yelp users claiming defamation, and demanded that Yelp turn over their true identities.  According to the Wall Street Journal, "So far, both the Alexandria Circuit Court and the Virginia Court of Appeals have sided with Hadeed, holding Yelp in contempt for not turning over the names.  Yelp in January appealed to the state Supreme Court, arguing that the reviews are protected under the First Amendment and that Mr. Hadeed offered scant evidence that they were fakes".

There are two real issues here.  First, how important is anonymity in posting reviews?  Second, what are a website's responsibilities as a third-party facilitator of the forum?

Anonymous speech is a monstrously large topic with an established legal tradition that goes back to America's founding.  Let's just say that it has been recognized in the American political tradition as being both valuable and vital to the spirit of the First Amendment.

That's legally-speaking.  However, in reality, online anonymity is regulated or outright banned more often than most people realize.  Whether it's your ISP or network administrator banning the masking of your IP address, or Facebook prohibiting anonymous accounts that don't clearly identify you as the person you are in real-life (remember when MySpace was rampant with such anonymous accounts?), the fact is that more and more online forums not only aren't valuing user-anonymity very much, they're outright viewing such anonymity as negative.

As for the website's responsibilities, it seems pretty clear that Yelp has little to worry about thanks to the most underrated federal policy of our time - Section 230 of the Communications Decency Act of 1996.  This Act provides immunity from liability for websites based on what its users publish.  In other words, Yelp cannot be held liable for a scathing review left by some individual anymore than Facebook can for a slanderous status message or Twitter can for a personally embarrassing tweet.  Web 2.0 sites based on user-generated content are shielded from such liability by Section 230.

Ironically, despite businesses like Hadeed increasingly objecting to Section 230 protections, the Act was originally devised as a boon to help support businesses and nascent industries.

Here's some food for thought.  All these same issues arise in an individual context, just as they do in a business context.  In other words, for years, people have complained about how helpless they are in the face of critical or embarrassing material being posted about them online, and how there was little recourse available to them.  Businesses are increasingly in that same boat.  Stinks, doesn't it?  But that's the trade-off with protecting privacy and anonymity, for better or worse.

The best advice going forward for businesses like Hadeed is the same as that for individuals...  Don't try to exert outright control over your online presence; it's futile, and the law may not even support you in your quest.  Instead, take steps to manage your resulting online reputation.  For example, one prudent way for Hadeed to realistically fight negative reviews would be to create incentives for its customers to go on Yelp and flood its listing with positive reviews.  No law-breaking; no subversion; just being more proactive in the marketplace of speech.