How to Identify Anonymous Posters on Yelp

January 2015

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Strategies for StoppingUnauthorized Internet Sales

The Online Reputation & Brand Protection Coalition’s mission is to help businesses protect their online reputations and brands online. The Coalition aims to fulfill its mission by educating businesses on how to protect and defend their reputations and brands online and advocating for increased protections and more effective remediation options for businesses.

Specifically, with respect to education, many businesses today are struggling because they do not understand how to best protect and defend themselves against online reputation and brand attacks, and there is presently a lack of quality educational materials and resources for businesses to turn to help understand and address these problems. To address the absence of these resources, the Coalition is committed to providing resources to businesses with the most up-to-date information designed to explain, prevent, and help businesses ultimately eradicate the problem of online reputation and brand attacks.

The Coalition provides its members with whitepapers created by the experts who regularly handle online reputation and brand attacks around the world addressing common reputation and brand problems which businesses are facing today.

Our Non-Profit Provides Educational Resources to Help Businesses Protect Their Brands and Reputations Online

The Online Reputation & Brand Protection Coalition is a non-profit organization dedicated to helping businesses protect their reputations and brands online. The Coalition is led by internet brand protection experts Whitney Gibson and Chris Anderson and includes a variety of multi-national advisors comprised of experts, business representatives, attorneys, educators, and other professionals.

To learn more about the Coalition, visit www.onlineprotectioncoalition.org

ABOUT THE ONLINE REPUTATION & BRAND PROTECTION COALITIONBOARD OF DIRECTORS

Whitney C. GibsonCo-Founder, Co-Chair of Board of Directorswcgibson@vorys.com

Chris Anderson, PH.D.Co-Founder, Co-Chair of Board of Directorschris@cyberinvestigationservices.com

Melissa AgnesMember of Board of Directorswww.agnesday.com

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How to IdentifyAnonymous Posters on Yelp

According to data released on September 30 2014, Yelp is home to approximately 67 million reviews.

1 According to a study released in 2012 by PricewaterhouseCoopers, 80 percent of the 7,005 consumers interviewed worldwide indicated they researched products online before making purchases. That figure was 88 percent among U.S. respondents.

2 Measuring the “predictive ranking strength of entire domains or subdomains.”

3 According to a September 2013 Business Insider article, 20 percent of Yelp reviews are fake.

Founded in July 2004, Yelp has become the largest and arguably most popular review-based website. According to data released on September 30 2014, Yelp is home to approximately 67 million reviews. Not only are countless reviews being published each day by “Yelpers,” but they are also being widely read before people decide to dine at a restaurant, shop at a store, attend an entertainment venue, or make a similar decision.1 Add in the fact that Yelp has a score of 94 on Moz.com’s 100-point “Domain Authority”2 scale, meaning Yelp listings will typically rank among a business’s top few search engine results. Thus, given the popularity of Yelp reviews and their high rankings in search results, businesses can suffer substantial harm if they are victims of false and defamatory reviews.

Although Yelp reviews can only be published by registered users of the website, reviewers are not verified as legitimate customers and registrants may provide a fake name (opening the door for fake reviews3). Therefore, when a business is the subject of a disparaging review, pursuing potential legal claims generally requires issuing a legal subpoena to Yelp in order to unmask an anonymous poster’s identity. This whitepaper offers a detailed explanation of how to go about issuing a subpoena to Yelp for identifying an unknown poster and what to request, as well as a discussion of two alternative strategies.

I. Introduction

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How to IdentifyAnonymous Posters on Yelp

Before a subpoena can be issued, however, a business must file a lawsuit, typically in the jurisdiction in which the company’s principal place of business is located.

It is no secret that many people will create “fake” Yelp accounts in order to publish negative or otherwise harmful Yelp reviews about a business. This may include disgruntled customers, but oftentimes these are other parties such as ex-business partners, ex-spouses, or former employees. Thanks to Section 230 of the Communications Decency Act, Yelp cannot be held liable for false or defamatory statements made by its users. However, the poster himself or herself can be; the trick is that they must first be identified, often accomplished through the issuance of a subpoena to the San Francisco, California-based Yelp, Inc. (through its registered agent). Before a subpoena can be issued, however, a business must file a lawsuit, typically in the jurisdiction in which the company’s principal place of business is located. Where a lawsuit is filed is important for issuing a subpoena, as each state handles the discovery process differently.

II. Filing a Lawsuit

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How to IdentifyAnonymous Posters on Yelp

If a case is pending in a state other than California, the business’s legal counsel must be aware of what the forum state requires for serving discovery in another state.

4 Pursuant to Texas Rule of Civil Procedure 205, however, Texas does alternatively permit litigants to provide 10 days’ notice to the non-party to which the subpoena is being issued, in lieu of obtaining a letter rogatory (this is often more efficient than waiting for a judge to approve a letter rogatory).

5 See Cal Code Civ Proc § 2029.350.

6 This form can be used to type any definitions/instructions and the actual requests for items to be produced by Yelp. If this is not enough space, an attorney may wish to say “See attachment” and then type any definitions/instructions and the actual requests on separate pages.

After filing a valid lawsuit for defamation or a related claim (such as a business tort) and obtaining a case number, a business should be ready to prepare its subpoena to Yelp in California. Yelp’s registered agent in California is National Registered Agents, Inc., and it will accept service at 818 W. Seventh St., Los Angeles, CA 90017. If a case is pending in a state other than California, the business’s legal counsel must be aware of what the forum state requires for serving discovery in another state. Many states require the local subpoena to be issued by the clerk of the court in which the action is pending, as opposed to being issued by the attorney himself or herself. Some states, such as Texas, may require requesting a commission or letter rogatory from the court in order to conduct out-of-state discovery.4 This essentially means asking the local judge to give an order to another state’s court requesting the issuance of a subpoena in the pending case.

Subpoenaing Yelp is easiest when the case is pending in California, as it will not require a supplemental subpoena from another state. Either way, California does permit a party to a case pending in a foreign jurisdiction to retain a California-licensed attorney to help execute and issue the appropriate California subpoena form5 (as opposed to opening an entirely new matter in the state, as some other states may require, such as Illinois). The specific California form will vary by case. The most common forms used when issuing subpoenas to Yelp are SUB-010 (Deposition Subpoena for Production of Business Records) and SUB-035 (Subpoena for Production of Business Records in Action Pending Outside California), both of which can be easily found using a search engine (as well as the MC-025 form for attachments6).

III. Issuing a Subpoena to Yelp in California

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How to IdentifyAnonymous Posters on Yelp

Someone attempting to harm a business through negative or fake feedback is most likely to sign up with a fake name and perhaps an email address created solely to post on Yelp.

Considering Yelp is very picky about the contents of a subpoena, it is best to err on the side of great detail, such as defining any term that Yelp’s legal counsel could claim to be ambiguous or overbroad. The actual requests should be narrowly tailored and not include requests for any information that Yelp does not have or maintain (such as a physical address or phone number). Note that to register a Yelp account, a potential Yelp user can either sign up through Facebook or can provide a first and last name, plus an email address. Someone attempting to harm a business through negative or fake feedback is most likely to sign up with a fake name and perhaps an email address created solely to post on Yelp. A request must also be for documents, not information. Therefore, such a request – sans any instructions or definitions – might look something like the following:

IV. What to Request in a Subpoena to Yelp

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How to IdentifyAnonymous Posters on Yelp

Once the unknown or anonymous Yelp reviewer is identified, the business can name them as a defendant in its lawsuit and continue to pursue its claims.

7 Yelp relies on cases such as Dendrite Int’l, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); and Doe v. Cahill, 884 A.2d 451 (Del. 2005).

8 Outside of our own experience dealing with Yelp, Yelp has recently been engaged in litigation with a Virginia-based business, since 2012, based on Yelp’s refusal to reveal the identities of seven unknown Yelp reviewers. The Virginia Supreme Court heard arguments for this case in October 2014. The justices had yet to rule on this case at the time of this whitepaper’s publication, but they were expected to do so in early 2015.

9 Using a website such as: http://whatismyipaddress.com/ip-lookup (see screenshot above).

10 Of course, this is a bit over-simplified, as there may be other hoops to jump through. For example, if the ISP is a cable provider, such as Time Warner Cable or Comcast, it is necessary to get a court order authorizing the ISP to disclose subscriber information, pursuant to a federal privacy law. The requesting party can also attempt to issue a subpoena to the email provider, for instance Google, Yahoo, or Microsoft.

After Yelp receives a valid subpoena, it will notify the Yelp reviewer and give them approximately 14 days to respond. If the poster does not object to the subpoena, Yelp’s counsel will contact the requesting attorney and require him or her to demonstrate that the review is false and defamatory.

Technically, before issuing the subpoena in the first place, the issuing party must be able to satisfy certain elements. The actual requirements vary by jurisdiction (based on where the case may be pending), but in general the issuing party must be able to make a substantial legal and evidentiary showing that it has been unlawfully damaged by the Yelp review and that it is entitled to learn the identity of the anonymous Yelp reviewer. Of course, interpretation of the tests from the various courts7 can be rather subjective, and Yelp may choose to object to a subpoena based on the standard applicable in the relevant jurisdiction. In fact, Yelp frequently does object to these subpoenas requesting identifying information.8

If the requesting attorney can demonstrate the review is false and defamatory, while satisfying Yelp’s other subpoena compliance policies, Yelp should produce the reviewer’s account information in accordance with the subpoena requests. Yelp require reimbursement of about $150 or $200, but it is not recommended that subpoenaing parties pay upfront considering the company’s propensity to object to subpoenas.

If the subpoenaing party can obtain an IP address from Yelp, it can determine the internet service provider (ISP)9 and issue a subpoena to the ISP for documents/information related to the subscriber who posted on Yelp.10 Once the unknown or anonymous Yelp reviewer is identified, the business can name them as a defendant in its lawsuit and continue to pursue its claims.

V. Next Steps in the Subpoena Compliance Process

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When a victim believes he or she knows who is behind an online attack (which is frequently is the case, but very often not), there are often circumstantial facts and perhaps evidence that may point to the person behind the posting.

How to IdentifyAnonymous Posters on Yelp

VI. Alternatives to Subpoenas

While we often recommend issuing a subpoena to Yelp, there are a couple of other ways through which a business can attempt to identify an unknown Yelp reviewer.

A. Using a cyber investigator: Oftentimes, consulting with a cyber investigator is an excellent and cost-efficient method of identifying unknown bad actors on the internet. Cyber investigators have a number of tactics and techniques that they use to obtain IP addresses of unknown posters which, in turn, can be used to issue subpoenas to ISPs for subscriber information. A primary technique cyber investigators often use is “pre-texting,” which involves misrepresenting his or her identity to attempt to get the author of a harmful post to take some action in order to obtain his or her IP address. For instance, they might claim to be someone with similar complaints against the company that the attacker is going after. In these communications, they will try to get electronic communications from that attacker from which they can gather the attacker’s IP address. An attorney involved in the matter must ensure the cyber investigator is not creating ethical problems.

B. Conducting a forensic exam: Another very effective, but perhaps underutilized, option for determining the identity of an online attacker is to conduct a forensic exam of the suspected attacker’s computer. When a victim believes he or she knows who is behind an online attack (which is frequently is the case, but very often not), there are often circumstantial facts and perhaps evidence that may point to the person behind the posting. In these situations, a forensic exam can be invaluable. When conducting these exams, we often find that the attackers will have attempted to cover their tracks by deleting computer data. This may be accomplished using wiping software after they received notice of the forensic exam. In some cases, it may be possible to find “fragments” related to the deleted data, which could provide information regarding: 1) when a file was installed; 2) whether a file was modified and when; 3) when a file was deleted; and 4) information about the data contained within the file. We have found forensic exams to be incredibly valuable in proving the attacker’s identity. Conducting a forensic exam may be unnecessary for a single Yelp review, but it is a good idea for businesses to consider all options – especially if they have issues getting Yelp to respond to their subpoenas.

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A business, citing these provisions, can contact Yelp and often can convince Yelp’s counsel that the harmful reviews should be removed from the website.

11 See the whitepaper “How Businesses Should Respond to Negative, False, and Fake Online Reviews.”

VII. Conclusion

How to IdentifyAnonymous Posters on Yelp

Attorneys that handle internet defamation matters regularly issue subpoenas such as the ones to Yelp described above. Each third-party entity handles subpoenas differently, and some are more easy to work with; Yelp, unfortunately, is not among those companies that is typically very generous when it comes to disclosing user information. By following the steps and recommendations above, a business has a favorable chance of obtaining the desired information about an anonymous Yelp reviewer. However, there is no such guarantee, even with a legitimate lawsuit and an otherwise valid subpoena. The good news is that the desired solution for a harmed business is often simply removing the review from Yelp, and Yelp does allow for the removal of reviews. First, the author of the review can edit or remove any review, which is a possibility even without determining his or her true identity.11 Second, even when Yelp objects to a subpoena, it is frequently willing to remove a harmful review if the requesting party can demonstrate that the review violated Yelp’s Terms of Service and Content Guidelines, for example. A business, citing these provisions, can contact Yelp and often can convince Yelp’s counsel that the harmful reviews should be removed from the website. In short, follow our recommendations for identifying anonymous Yelp posters, but know that a harmful review can potentially be removed from the website even without disclosing the identity of a poster.

www.onlineprotectioncoalition.org