What's the balance between 1st amend. and protecting a business from libel?

[Laurie4b]

http://www.washingtontimes.com/news/2014/jan/8/court-rules-yelp-website-must-identify-seven-negat/ 

 

An appeals court in VA has ruled that YELP has to disclose the names of negative reviewers to a business owner who suspects they are not customers.

 

What is the balance? It's obviously not fair that a business might be negatively affected by numerous reviews from one disgruntled customer or by trollish people having fun blasting places they haven't gone. On the other hand, what about free speech and the dampening effect it could have on those very helpful online reviews if people thought their anonymity would not be protected.

 

Then there is the separate question (not a first amendment question)  of the effect on our society and culture of so much anonymous speech on the internet. "Comments" sections typically contain really hateful stuff that you never see when people have to attach their real names. How does the anonymous speech influence us, our perceptions, our emotions, etc?  Even if it is protected first amendment speech, what is the cost/benefit ratio on anonymous posting?

 

I'm interested in hearing people's thoughts.

[ThatHomeschoolDad]

Seems like A.) it could be a libel issue, which is a genuine concern, especially with the ease of anonymous online postings that could damage a business, and B.) a very business-friendly ruling which, depending on your level of governmental distrust, continues the pattern of pro-business law (because corporations are people, my friend!).

 

I'm inclined to think it's a bit of both.

[umsami]

In 1999, I went to see a surgeon about a potential surgery and then wrote a review about my experience on a surgery board.  It was mostly positive, although I dinged him for a bunch of mistakes in the materials he gave out.   The surgeon freaked, and contacted the site owner, threatened legal actions against both of us (letters from lawyers, etc.  I was definitely a real customer of his--but in the end, it was easier for the site owner to remove all reviews for that surgeon rather than face legal action.  For at least 5+ years there were no reviews of that surgeon, and that (in my opinion) hurt his business far more than having mostly positive reviews with one or two negative ones. (Note: Mine was 90% positive.)  

 

I've heard other physicians talk about review sites and how to combat negative reviews, and my advice to them is to combat it with positive reviews--and not to dismiss patient's concerns.

 

I think that Amazon too has combatted things like this by having a badge that says "Amazon Verified Purchase."  While other reviewers may have really bought the product elsewhere, I tend to take reviews of people with that badge a tad more serious.

 

I think that the fix in this case would be similar to my first one, allowing businesses who want to be listed on Yelp, but not reviewed, disable reviews/comments.  Quite frankly, I think the carpet cleaning business owner completely over-rected over seven reviews.  He could have far better combatted it with positive reviews…and there are ways to encourage happy customers to create reviews, such as having a laptop available after the service that the person can use to review, or offering some sort of discount on the next cleaning for a review (positive or negative…just email us a copy of your review after you write it.)

 

The court blew it, IMHO…just like with Citizen United.  

 

As for trolls and the like, I do think there should always be a way for a business owner to flag potentially offensive or trollish reviews.  Perhaps with a fee involved for businesses who want this option, Yelp could then contact questionable reviews and ask for more verification on when they used/visited the restaurant/carpet cleaning business/etc.  If no verification is possible, then while still protecting the privacy of the user, the review can be removed.  If a certain reviewer is problematic, then Yelp can remove him/her.  

[Lara in Colo]

The amount of damage that can be done these days (because of the speed of your "words" online) make the need to be held more liable for your words a growing must. (I hope that made sense)

 

I still believe in free speech, but these days saying Dr so and so is bad to 5 people in a pub is different that 5 million people online.

 

I would liken it to bad mouthing someone in a very small town.

[Dandelion]

Libel/defamation has always been a recognized exception to First Amendment rights.  While the Supreme Court has ruled repeatedly that the First Amendment protects the right to anonymous free speech, that protection can be removed in the case of libelous speech.  By definition, libelous speech = false statements.  You can make damaging statements, and remain protected, as long as your statements are true. 

 

Whether or not the plaintiff in this case provided sufficient evidence to support the libel claim, it's hard to say based on what was reported.  There is the issue of the 88 reviews for this business that were hidden by Yelp (which is something Yelp apparently only does if they suspect the reviews of being false or violating their terms of service).  So it seems that this business was in fact receiving a large number of questionable negative reviews.

 

An alternative ruling in this case might have allowed for Yelp to turn over the reviewer names to an officer of the court or another third party, to allow them to cross-reference those names with a customer listing from the business owner.  This would have provided for independent verification of whether these reviewers were actual customers of the business or not.  Once that determination had been made, the case could have been settled appropriately.  But it would have protected (somewhat) the anonymity and free speech rights of the reviewers until a definitive determination was made, instead of turning over the reviewer names to the business to make that determination. 

[Um_2_4]

 

As for trolls and the like, I do think there should always be a way for a business owner to flag potentially offensive or trollish reviews.  Perhaps with a fee involved for businesses who want this option, Yelp could then contact questionable reviews and ask for more verification on when they used/visited the restaurant/carpet cleaning business/etc.  If no verification is possible, then while still protecting the privacy of the user, the review can be removed.  If a certain reviewer is problematic, then Yelp can remove him/her.  

 

I think this would probably work for yelp, but I do tend to not give toooo much weight to reviews on anynmous sites.

And how would one prove they went to a restaurant if they paid cash and do not keep every receipt ever? Maybe they were a guest and someone else paid? Comparing it to a list of "clients" would only work for those businesses that keep strict client records.

 

I will look and if all or almost all reviews are negative, then I usually would pick a different business. I am not familiar with this particular case, but if a company has 90 anonymous reviews in my experience even if 10% are accurate reviews (either way) then 8 negatives and 1 positive is not a good record, kwim? Even 5+ and 4- would make me keep my eyes open for warning signs when looking to hire them. I highly doubt 100% are fake reviews.

 

And they should have an option when a business changes owners for the reviews to be "reset". It has happened to some places around here, you see mostly negative for a year then followed by some positives when new owners take over. But you don't know unless someone mentions in a review that there are new owners.

[Dandelion]

I think this would probably work for yelp, but I do tend to not give toooo much weight to reviews on anynmous sites.

And how would one prove they went to a restaurant if they paid cash and do not keep every receipt ever? Maybe they were a guest and someone else paid? Comparing it to a list of "clients" would only work for those businesses that keep strict client records.

 

 

I agree.

 

I don't think there's a wide-scale "verification" process that can (or even should) be implemented for online review sites. 

 

This will continue to be hashed out in the courts, so I think the adaptation to the realities/issues of freedom of speech on the internet need to come from there.  Personally, I would have liked to see more protection of the reviewers in the case cited in the OP (via an independent third party verification as I suggested in my previous post).  At the same time, it's imperative that people are held legally accountable for libelous speech because that's the only chance we have of keeping anonymous online reviews and other content in check IMO. 

[Laurie4b]

 

An alternative ruling in this case might have allowed for Yelp to turn over the reviewer names to an officer of the court or another third party, to allow them to cross-reference those names with a customer listing from the business owner.  This would have provided for independent verification of whether these reviewers were actual customers of the business or not.  Once that determination had been made, the case could have been settled appropriately.  But it would have protected (somewhat) the anonymity and free speech rights of the reviewers until a definitive determination was made, instead of turning over the reviewer names to the business to make that determination. 

 

Yeah, I thought that perhaps a 3rd party was a good idea. If you are a customer and wrote a bad review and want to keep it anonymous, you should have that right.

 

I bet that could become a profession: cross-checking reviews with customer lists! Of course, in the case of businesses that don't keep customer records, it doesn't really protect them. (Any business that takes cash, for instance.)

[Bootsie]

Personally, I think that the freedom of speech our founding fathers wanted to protect was speech that individuals were willing to stand up for and take accountability for--not "anonymous speech."  

 

This issue impacts more than just businesses.  As a college professor at a public university, many of the anonymous comments that students make about me are available for public viewing.  Students can make anonymous, untrue comments without any consequences.  These comments can be used by tenure and promotion committees without the faculty being able to reasonably address them. I had one colleague who had a student make comments that would definitely be considered sexual harassment; the university had to post these comments for the world to see, even though they were in no way related to her work.  

 

I have also seen these issues come up with authors on Amazon.  I had a colleague who was in the process of publishing a book.  The advertisement for the book was on Amazon, but the book was not actually in print yet.  An extremely negative review was written by a "reader" on Amazon.  It would have been impossible for the "reader" to have even had a copy of the book yet.

[Laurie4b]

dp

[Laurie4b]

In considering my own behavior when reading reviews, I tend to look at the range of them and the specific things they are saying. Personalizing (we went to celebrate our anniversary)  and more specificity --"I ordered the crab cakes and my husband ordered the New York Strip" tends to make me weigh the rating more fully.   I'm weighing for veracity either way. And a single person offering multiple poor reviews still tends to speak in the same "voice" and there is likely to be slippage of some sort.

 

On the other hand, there have been some glowingly positive reviews that have switched pronouns from "They have great food" to "we offer a variety of the finest beers" in the midst of the review. Could be a mistake of someone cutting and pasting, but could also be the owner was writing the review and slipped and used the correct pronoun.

 

Anyway, does the fact that many people do some kind of mental sifting as to the truthfulness of the review counter potential misinformation by a malicious source?

[bettyandbob]

I heard about this on the radio and have been at work so I haven't read the paper or looked at the reviews. My first reaction was for this business because of the owners name the reviews may be someone or a group targeting the business based on race or ethnicity. That's my guess as to why the court made the order.

[Dandelion]

Personally, I think that the freedom of speech our founding fathers wanted to protect was speech that individuals were willing to stand up for and take accountability for--not "anonymous speech." 

 

I used to think that too, but then I realized that our founders actually actively engaged in anonymous free speech themselves.

 

Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym "Publius" and "the Federal Farmer" spoke up in rebuttal.  So our founders used anonymous free speech to grow support for the movement that eventually resulted in the Revolutionary War, the Bill of Rights, and the U.S. Constitution.  

[Laurie4b]

Personally, I think that the freedom of speech our founding fathers wanted to protect was speech that individuals were willing to stand up for and take accountability for--not "anonymous speech."  

 

This issue impacts more than just businesses.  As a college professor at a public university, many of the anonymous comments that students make about me are available for public viewing.  Students can make anonymous, untrue comments without any consequences.  These comments can be used by tenure and promotion committees without the faculty being able to reasonably address them. I had one colleague who had a student make comments that would definitely be considered sexual harassment; the university had to post these comments for the world to see, even though they were in no way related to her work.  

 

I have also seen these issues come up with authors on Amazon.  I had a colleague who was in the process of publishing a book.  The advertisement for the book was on Amazon, but the book was not actually in print yet.  An extremely negative review was written by a "reader" on Amazon.  It would have been impossible for the "reader" to have even had a copy of the book yet.

 

I've heard college professors complain about this, too. A student will say something that is factually verifiable as false (he gave no warning that xyz was due and it was on the syllabus handed out the first day) and there is no recourse. My high school student is in a high school program that allows community college courses. I started a private "Rate my professor" on Facebook so we knew the people actually making the recommendations.

[Laurie4b]

I heard about this on the radio and have been at work so I haven't read the paper or looked at the reviews. My first reaction was for this business because of the owners name the reviews may be someone or a group targeting the business based on race or ethnicity. That's my guess as to why the court made the order.

 

That is a good point.  There's also the possibility that a competing business targets a competitor.

[Robin M]

It is interesting because our business has received a few bad reviews and like the business owner in the article could not identify the customers as someone who had actually come in. Yelp went from having all the reviews list when your name came up to hiding recommendations, even the five star ones. Probably due to so many complaints about anonymous or purposely bad reviews to drive ratings down in favor of a competitor. Because of our experience with yelp and knowing the majority of small businesses in town, I don't trust any yelp review. It is like those movie critics that you know if they hated a movie, you would love it.

[bettyandbob]

I've heard college professors complain about this, too. A student will say something that is factually verifiable as false (he gave no warning that xyz was due and it was on the syllabus handed out the first day) and there is no recourse. My high school student is in a high school program that allows community college courses. I started a private "Rate my professor" on Facebook so we knew the people actually making the recommendations.

 

ds told me last week that he had a professor last year give extra credit for creatively negative reviews. In order to get the extra points the review couldn't be anonymous.

[mamaraby]

And there's also the possibility of a business targeting accurate reviews because they don't like the negative reviews. See also: SLAPP lawsuits (and here, too). It's fine if a business wants to seek redress for libel (or anyone for that matter), but IMO we need protections for valid criticism so that a business or an individual can't silence the opposition just because the experienced what Popehat calls BIFD (or "butt hurt in the first degree").

 

Sometimes there is a need for anonymous speech - often because of threats to a person's life - and it should be every bit as protected as speech that comes along with my name and picture. There have been instances where minority members have spoken up about something and found themselves the recipients of threats or outright violence against them (or their property). I will always err on the side of anonymity in order to make sure we have a level playing field for all members of our society - not just those who find themselves in the majority. To me, the benefits outweigh the risks to harm.

 

ETA: This idea that if only people had to use their real name, all comment sectins would be cleaned up is, IMO, naieve. I have seen my fair share of newspaper comment sections online tha use a Facebook comment section where people have both their name and their picture attached to their comments and it hasn't done anything to hamper the horrendous things that some people say.

 

Very recently I saw a newspaper comment section with Facebook comments where people talked about "running someone out of town" because an annonymous individual had questioned the legality of the local government's action in a situation. The difference being that the Facebook commenters had the position of perceived majority while the annonymous person was from a more marginalized population and chose to remain annonymous for good reason. Should we remove their annonymity so that those Facebook commenters (who used their name) can intimidate the annonymous individual?

[QueenCat]

Libel and slander are not protected by the Constitution's right to free speech. How to deal with it is not easy when it's so easy to be anonymous.....

[Anne in CA]

A few years ago I needed an appliance repaired and looked up some local reviews. All of them had some terrible reviews so I hired the first one that would come. He was really professional and I told him about the three awful reviews he had so that he knew about them. He told me that one of his competitors is who writes all the bad reviews for everyone. They are all fiction. I believe him, because he was everything the good reviews said he was. So I really take all reviews with a grain of salt.

[LucyStoner]

People often misunderstand libel and defamation. True statements and statements of opinion are not libelous. I was threatened with legal action for libel by a client who was upset that I terminated my business relationship with because I believed I couldn't raise money for them without violating my professional ethics and possibly the law. When I uncovered the issues, all of the staff and most of the board quit, leaving the founding executive to throw a temper tantrum over getting caught. My lawyer shooed that off very quickly because I had said nothing that was not a documentable fact or a statement of opinion. The first amendment protects even negative speech. If it is not libel when you tell 5 neighbors then it is not libel just because 5 million people hear it either. If it is true or a matter of opinion and not exaggerated or fabricated, there is no geniune case for libel.

[Um_2_4]

A few years ago I needed an appliance repaired and looked up some local reviews. All of them had some terrible reviews so I hired the first one that would come. He was really professional and I told him about the three awful reviews he had so that he knew about them. He told me that one of his competitors is who writes all the bad reviews for everyone. They are all fiction. I believe him, because he was everything the good reviews said he was. So I really take all reviews with a grain of salt.

 

We ran into that with painting contractors when looking for quotes last year when we moved in. It was really ridiculous and very obvious. They used similar text on all reviews, etc. They even took it to craigslist. Posting ads about other companies. Then we ended up scheduling them, without realizing it was them doing all this till afterwards, for a quote and they went kinda nutso on us. Harassing phone calls, threatening to call the "board" if we didn't use licensed contractors (which we did, but they kept claiming they were not. I checked every license so we did not have any issues with fines or the like as these were big $ jobs).

[goldberry]

If you are a customer and wrote a bad review and want to keep it anonymous, you should have that right.

 

 

 

 

Hmmm...why?  Really wondering.  If I choose to take my issue to a public venue (which is my choice, I don't have to do that) then why should I have the right to remain anonymous, when I am taking my complaint public?

 

What is wrong with someone being able to verify the truth or untruth of my allegations?

[Bootsie]

ds told me last week that he had a professor last year give extra credit for creatively negative reviews. In order to get the extra points the review couldn't be anonymous.

 

I have heard of professors doing a lot of odd things, but this is one of the oddest.  Was there some point the professor was trying to make?

[bettyandbob]

I have heard of professors doing a lot of odd things, but this is one of the oddest. Was there some point the professor was trying to make?

I think he thought the ratings site was meaningless. Perhaps it was his odd way to protest the concept of ratings.

[mamaraby]

Hmmm...why?  Really wondering.  If I choose to take my issue to a public venue (which is my choice, I don't have to do that) then why should I have the right to remain anonymous, when I am taking my complaint public?

 

What is wrong with someone being able to verify the truth or untruth of my allegations?

Why?  See also:  SLAPP lawsuits and UM_2_4's post.  If I can tell 5 of my neighbors in person why I think x contractor or x company is terrible without the business knowing and being able to penalize me for giving a review (like on umsami's post), then why can't I do so with my virtual neighbors?

 

It's like seller feedback on Amazon or Ebay.  I once left a negative review for an Amazon seller after a truly terrible experience and then was hounded by phone and email to remove the feedback even though it was genuine.  After that I elected to not leave feedback/reviews.  Of what value is it for there to be only positive reviews?  What business owner believes that no one will ever speak ill of them?

 

This sort of stuff happened before the internet - it's just that the business owner never knew about it.  I think most folks are savvy enough to be able to read negative reviews (on products, on service, etc) and read between the lines/determine whether it's an issue for them or not.  If it's an issue of discrimination (like targeting a business because it's owned by a minority or some other nefarious reasons) or an issue of libel or defamation then let's take care of that through the legal system, but legislating speech like this because of the worst possible cases ends in up in a "hard cases make bad law" situation.

 

I think there's also a certain degree of privilege involved in those who question the need for anonymity.  To a certain degree, I think the more you can identify with majority culture the easier it is for you to not fear the backlash involved if you speak your mind.