Advocacy Group Urges Strict Standards for Protecting Anonymous Online Commenters

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first-amendmentWhile many criticize the Vanguard for allowing anonymous or pseudonymous posters, we take the issue seriously.  We prefer respectful discourse, we also recognize that there are times in a small community like this one that people need to protect their identity and the ability to speak out without fear of retribution or social ostracism.

Longer time users will recall that the Vanguard has in the past, gone to court to protect the anonymity of commenters even when the Vanguard has been in support of the core issue.

The Reporters Committee for Freedom of the Press was founded in 1970s and provides “free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail.”

This week, they filed an amicus brief in the Virginia Court of Appeals, in the case of Hadeed v. Yelp callingfor a heightened standard of judicial review before anonymous online commenters are identified” and urging “the court to revisit a lower court’s order compelling the disclosure of an anonymous criticism of the services of Hadeed Carpet Cleaning posted on the online review site Yelp.”

The case stems from the attempt by Hadeed Carpet Cleaning to seek the identity of unidentified individuals who posted anonymous reviews on “Yelp” which is a popular online review web site.

The reviewers – seven of them -stated that their service charged significantly more than the advertised price or charged for work that had not been performed.  The company believes that what was written was false and defamatory, however, other customers made similar comments on Yelp without being sued by the company.

The company also alleged that the reviewers were working for competitors and thus the purpose of the negative reviews was to make the business look bad.

The company then subpoenaed Yelp, seeking documents to help identify the seven commenters.  Yelp objected, arguing that the users had the right to post and those rights would be violated by identifying them.  However, the trial court, ruled for the company and ordered Yelp to abide by the subpoena and provide the requested information to the plaintiff.

Yelp has yet to comply with this order, instead asking the plaintiff to name any reviewers it believes were employed or connected to competitors so that it might investigate. The carpet cleaner has not taken Yelp up on this offer.

In their amicus brief, the Reporters Committee argue, “The trial court erred in not recognizing the constitutional right to speak anonymously.”

“The First Amendment protects the right to speak anonymously across a broad spectrum of subjects, whether the expression at issue relates to most important political concerns of the day or, as here, the quality of service of a carpet cleaning company,” they argue. “The trial court’s order suggests anonymous speech is “not entitled to the same level of protection as truthful or political speech,” but neither of the cases it cites stands for this proposition.   Instead, there is a robust body of precedent affirming the importance of protecting anonymous speech under the First Amendment.”

“Protecting the identity of someone posting an anonymous review on Yelp or any other website is crucial to protecting speakers’ First Amendment rights and the public good,” the Reporters Committee stated in a press release.

“By offering only a minimal discussion of First Amendment interests at state, the trial court failed to fully acknowledge the extent to which the First Amendment restricts compulsory identification of anonymous speakers on the Internet,” the brief to the Court of Appeals argued. “When faced with questions of compelled disclosure of anonymous online speakers, this Court must adopt a meaningful standard that requires a heightened showing of evidence of a valid claim and notice to the affected parties.”

“This standard is essential to protect the interests in anonymous speech, which often serve the public good and contribute to a better understanding of public issues and controversies,” according to the brief, which was joined by the American Society of Newspaper Editors, Gannett Co. Inc., and the Washington Post.

“Courts around the country have established certain benchmarks that must be satisfied before compelling the disclosure of an anonymous commenter,” said Reporters Committee Executive Director Bruce D. Brown. “First, there ought to be tangible evidence that the comment was false and defamatory and, second, speakers should be notified that an action is pending. To do otherwise would be to inhibit robust debate.”

In their brief they argue, “While journalists will typically develop sources and gather information before publishing a news article, that method can never ensure that all parties with information to contribute can be heard.”

Thus many news sites, such as the Davis Vanguard, allow for comments to be posted anonymously.

In their brief, they acknowledge the potential shortfalls of anonymous posts, but argue, “While a large amount of these comments may contribute little to the public debate as posters engage in online arguments influenced by their personal politics, some of these comments have prompted further investigation by journalists and more in-depth follow-up articles. Without the guarantee of anonymity, many of these posters would have never shared their information and the public would have been less informed.”

The Vanguard support for anonymous posters rests with the fact that we were born out of an issue of controversy where a large number of people feared speaking out for fear of reprisals.  Sometimes this right is inconvenient and often it devolves into petty bickering for little advantage.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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16 thoughts on “Advocacy Group Urges Strict Standards for Protecting Anonymous Online Commenters”

  1. SODA

    “Sometimes this right is inconvenient and often it devolves into petty bickering for little advantage.”

    David, this last sentence seems to come out of nowhere! Can you expand on it?

  2. Frankly

    Until there are laws and precedence to allow for the recovery of damage from reprisal over disagreements of things written, not only should the Vanguard and other blog sites support anonymous posting, but it should sufficiently protect anonymous posters from being named.

    I am close to someone that used to post by name and was then a victim of reprisal from a prominent and powerful politician over disagreement about things posted. This caused me to consider that everyone posting is subject to reprisal by politicians. Hence everyone posting is a politician. As politicians, if you value your career and cannot afford any damage from reprisal from politicians, you might consider only posting what is politically-correct. Otherwise, post from a pseudonym where you may speak freely.

    I’m sure the thought police would prefer everyone posts by real name, and then these same people would justify reprisal against anyone stepping outside their narrow political-correctness box.

  3. Frankly

    By the way, this absolute power of politicians to damage others from reprisal is just another of many reasons that we need to keep the size and scope of government small.

  4. David M. Greenwald

    SODA: I just think there are people willing to say things under the cover of anonymity or even the veil of it that they aren’t prepared to say under their own name or in person. And that gives people the freedom to make points that might otherwise not be popular but at the same time it gives them license to be rude and petty. In my view, the first trumps the second and we can deal with the second through moderation and people like Don Shor who volunteer their time to help out.

  5. SouthofDavis

    David wrote:

    > The reviewers – seven of them -stated that their
    > service charged significantly more than the advertised
    > price or charged for work that had not been performed.

    As an anonymous poster I don’t think David should give my IP address to anyone that asks, but I think the Vanguard (and other sites) has the obligation to remove anything posted anonymously that someone else says is false if the person won’t submit proof that it is true (or step forward to defend it publicly)…

  6. David M. Greenwald

    “By the way, this absolute power of politicians to damage others from reprisal is just another of many reasons that we need to keep the size and scope of government small.”

    Ironic because in this case we are dealing with two private entities rather than government.

  7. Frankly

    In the news today… IRS admits it was wrong to scrutinize Tea Party.

    If this was a conflict between two private parties they could seek remedies for damage. How does one get a remedy for damage from government?

  8. SODA

    Thanks David for expanding. I totally agree. My SODA status embarasses me sometimes, in that I think I should be ok with my true identity but obviously I like the ability to be more open (and sometimes more petty I admit) with the anonymity.

  9. David M. Greenwald

    The topic of conversation is anonymous posters having protected first amendment speech in a suit by a carpet company against an internet provider. You’ve tried to expand the issue into an abuse of power by the IRS. That is not the topic of this article.

  10. Robin W

    There is a big difference between people having the option of stating their opinions anonymously and people being able to allege unsupported “facts” anonymously. In this case, we are talking about speech that can — and, indeed, is designed to — negatively affect a business by discouraging potential clients from using the service of that business. I strongly support an option to anonymously post opinions on political or social issues, but do not support people being free to harm others economically or to harm their reputation through a cover of anonymity. I think the trial court judge got this one right.

  11. medwoman

    [quote]As an anonymous poster I don’t think David should give my IP address to anyone that asks, but I think the Vanguard (and other sites) has the obligation to remove anything posted anonymously that someone else says is false if the person won’t submit proof that it is true (or step forward to defend it publicly)… [/quote]

    I am wondering if you would apply this equally to different types of posts. I can see that it might be reasonable
    for the Vanguard to remove a false post about an individual who claims that they were not guilty of the anonymously claimed action. However, I think that it would be entirely unreasonable to for example remove a post of an anonymous opponent of water fluoridation because I can site evidence proving the claim incorrect.
    Would you promote removal in one, both, or neither of these cases ?

  12. jimt

    David, good article; didn’t know you were an advocate for this and am glad that you are.

    I post anonymously largely because many of my opinions might be considered as politically incorrect; and I am not retired yet and don’t want to risk possible repercussions on my career; as Frankly has alluded to. I do try to avoid negative statements or allusions about particular individuals; I have a personal ethos that one should not hide behind anonymity if attacking the basic integrity of a particular individual (possible exception for well-known politicians or gangsters!)

    David I’m grateful you allow for anonymous posts; I do think it helps many people be more open about posting their thoughts.

  13. JustSaying

    This isn’t an easy one. People shouldn’t get a free pass for outrageous behavior that seriously damages others–libel for which the offended party would be compensated if only the defendant could be identified. But, nothing should be released unless it’s pretty sure than libel target would win and if the libeler cannot be identified by any other means.

    I don’t think this particular case is a good one for testing the limits of the “Constitutional right to anonymous speech.” Yelp (like the [i]Vanguard[/i]) provides a public service that is enhanced by allowing anonymity by posters who, for whatever reasons, are forthcoming in such a setting. That’s a small price to pay to have a few jerks who call people #@%

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