Building Owner Can’t Discover the Identity of Tenant Who Writes Bashing Yelp Review (Forbes Cross-Post)

By Eric Goldman

Brompton Building, LLC v. Yelp!, Inc., 2013 IL App (1st) 120547-U (Ill. App. Ct. Jan. 31, 2013)

Battles over online anonymity aren’t new, and we’ve made a lot of progress clarifying the legal rules.  Usually, when a plaintiff sues an unknown defendant (called a “Doe”), the court requires the plaintiff to show that its case has some merit before issuing a subpoena to identify the defendant (sometimes called an “unmasking subpoena”).  This judicial review balances the plaintiffs’ rights to pursue unknown defendants against the potentially significant consequences of unmasking, including the possibility that unmasked defendants will be punished outside the courtroom (such as an employer firing a critical employee).  However, judicial review can mean that sometimes plaintiffs get stuck in court, as illustrated by a recent landlord/tenant dispute over a negative Yelp review.

What Happened?

The landlord, Brompton, sought a subpoena (pursuant to Illinois Supreme Court Rule 224) from Yelp ($YELP) to identify user “Diana Z.,” who wrote a critical review of the landlord’s former management company, Beal Properties.  (Diana Z. doesn’t appear to be the only Yelper unhappy with Beal–you’ll need asbestos glasses to read its Yelp reviews).  Diana Z.’s Yelp posting concludes sarcastically:

my interaction with Beal has made me a better person in the following ways:

I actually enjoy talking with my HR department.

I look forward to moving to a worse neighborhood….

Contracting herpes doesn’t seem as horrible.

[Note: normally I’d link to the review so you could read it in all its glory, but it is offline (more on that in a moment).  The full text is quoted in the opinion.]

Brompton specifically objected to Diana Z.’s assertions that Beal lied about the date it received her rent check (leading to a late fee) and  that “Beal Properties is illegally charging tenants late fees for their rent.”  If untrue, these sound like the kinds of statements that could be defamatory.  Yet, the court says that  in the context of the entire review, the statements were Diana Z.’s opinion, not assertions of fact.  The court also notes that Beal Properties, not Brompton, is probably the proper plaintiff.  Because Brompton’s case wasn’t meritorious enough on its face, the appellate court denies Brompton’s request for an unmasking subpoena.  As a result, Brompton has hit a dead-end in any lawsuit against Diana Z.–unless it discovers the accountholder’s identity some other way.

Implications

Opinion v. Fact.  Diana Z.’s assertions are fairly detailed and specific.  On their face, they look like factual assertions.  Still, the court generously characterized them as opinions, making the statements non-actionable.  I don’t purport to understand the judicial line between fact and opinion, but courts increasingly are treating online statements as opinions, not facts.  Indeed, we’ve seen numerous cases indicating that readers don’t interpret online content literally (see, e.g., Seaton v. TripAdvisor, McKee v. Laurion; LeBlanc v. Skinner; Seldon v. Compass Restaurant; and Redmond v. Gawker).  This is creating a type of Internet exceptionalism, where the medium makes a difference to the legal outcome.  Overall, I think this trend is beneficial for consumer reviews, but it does create the possibility that fact-like statements are legally immune online.

The Court Protected the Absent Reviewer.  Yelp didn’t appear in this action (and, of course, Yelp didn’t have to worry any legal liability due to 47 USC 230).  I checked with Yelp, and they told me that their policy is to notify targeted users about subpoena requests and related efforts, like this pre-litigation action for discovery, Yelp did notify the user in this case.  Nevertheless, Diana Z. didn’t make an appearance in court either.   As a result, Brompton’s action faced no opposition–but it still lost.  The result is a nice and mildly surprising victory for user privacy, even when users don’t show up to advocate for their own interests.

Can Brompton Identify Diana Z.?  Brompton may have struck out in court, but there are other ways to unmask anonymous online authors.  For example, in the AutoAdmit case, the plaintiffs determined the identity of anonymous commenters by correlating their activities on other websites and learning their identity from those sites.  (See, e.g., this discussion for some thoughts on how to do it).  Or, in a case involving online comments to a newspaper, the plaintiff deduced the anonymous commenter’s identity using linguistic analysis.  Or, in this case, the review provided so many details that Brompton should be able to make an educated guess about the tenant’s identity just by corroborating the review’s details against its tenant roster.   Extra efforts to identify Diana Z. may not be worth it in a case like this, but Brompton feels otherwise, it still has options despite the court loss.

Where is Diana Z.’s Review?  The review no longer appears on Yelp.  Presumably Diana Z. removed it (Yelp confirmed to me that it didn’t remove the post for a terms-of-service violation), perhaps in a panic after learning about Brompton’s action.  So despite its court loss, Brompton effectively scuttled the critical Yelp review.  While we might lament the plaintiff’s inability to sue over online statements due to anonymity, this case–along with many others–reminds us that plaintiffs often achieve their goals irrespective of the judicial outcome.

[Photo Credit: Closeup of a common cold sore virus herpes // ShutterStock]