Yelp Must Unmask Author of Critical Tax Return Review

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By Alexis Kramer

Yelp Inc. Nov. 13 lost a bid to overturn a court order requiring it to reveal the author of an anonymous, allegedly defamatory review on its site.

The case highlights the unsettled area of law over the extent to which website operators can protect the anonymity of their users.

Gregory Montagna, an accountant, filed suit against several unknown defendants for an online review criticizing his tax return service. According to Montagna, the review falsely stated he charged more than he quoted and prepared a sloppy tax return. Montagna served a subpoena on Yelp for documents that would identify the anonymous reviewer. After Yelp refused, the trial court ordered the company to comply with the subpoena by Dec. 9.

The California Court of Appeal, Fourth District, ruled that the trial court’s order enforcing the subpoena was justified because Montagna sufficiently alleged defamation ( Yelp Inc. v. Superior Court of Orange Cty. , Cal. Ct. App., No. 30-2016-00848551, 11/13/17 ). However, the court reversed the trial court’s order imposing $5,000 in sanctions against Yelp for failure to comply, due to the “evolving state of the applicable law.”

A Yelp spokeswoman declined a Bloomberg Law request for comment.

False Statements of Fact Implied

The court held that Yelp had standing to enforce the anonymous reviewer’s First Amendment rights. However, that constitutional protection isn’t available for defamatory statements, it said. The court looked to a recent decision in ZL Techs. v. Doe, in which the First District Court of Appeal held a plaintiff must make a prima facie showing of defamation before a court can compel disclosure of an anonymous speaker’s identity.

The Fourth District Court of Appeal, in an opinion written by Justice Kathleen E. O’Leary, rejected Yelp’s argument that the review couldn’t be defamatory because it consisted of nonactionable expressions of opinion. An opinion that implies a false assertion of fact could constitute defamation, it said.

The court said that Montagna adequately alleged the review implied he overcharged for his services without justification and inaccurately prepared the tax return. Montagna also sufficiently alleged that those statements were false, it said.

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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