Aspen pet store can subpoena Google, Yelp for anonymous poster’s identity
April 16, 2018
An Aspen pet store's legal quest to identify the anonymous poster of negative and allegedly false online comments on at least two review sites has gained traction with a local judge.
Pitkin County District Judge Chris Seldin ruled late last week that attorneys for plaintiff Pet Boutique LLC, which does business as C.B. Paws in the Hyman Avenue pedestrian mall, can begin early discovery to try to identify the poster or posters in question. However, for the time being only plaintiffs attorneys David Lenyo and Jason Buckley, as well as Seldin, will be privy to the name of the poster, if it is indeed just one person as C.B. Paws alleges.
Lenyo and Buckley, both of Garfield & Hecht PC, as well as Steve Fante, the owner of C.B. Paws, which is closed for the offseason, could not be reached for comment Monday.
C.B. Paws' lawsuit, which was filed in early March against "John Doe," claims an anonymous poster has sullied its reputation by writing "false statements and negative reviews" on Google and Yelp. The complaint contends the poster is a single individual using multiple identities to disparage the business.
Seldin's order notes there is "no published Colorado precedent" regarding the legal action by C.B. Paws, yet "other courts, however, have provided fairly well-developed and consistent standards to address such requests."
Seldin's order Thursday gave permission to C.B. Paws to subpoena Google and Yelp for what a March 22 motion from the pet shop called "the limited purpose of ascertaining defendant's identity, contact information and internet protocol address."
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Anonymous speech in the United States has been protected by the First Amendment, "most memorably" the pen name "Publius" that Alexander Hamilton, James Madison and John Jay used in the Federalist Papers, Seldin noted.
"It is now well-settled that this right to speak anonymously applies to speech on the internet," Seldin wrote. "That right, however, is not unlimited. How courts balance this right with the rights of persons injured by such anonymous speech is the subject of a line of cases identified with Dendrite Int'l v. Doe."
That New Jersey case involved computer software company Dendrite International Inc., the plaintiff, which sued the anonymous posters of critical comments on a Yahoo message board.
The result was a five-part balancing test requiring the plaintiff to notify the anonymous posters they would be subpoenaed for their identity and specify the online statements that are actionable speech. That test also includes the court determining whether the plaintiffs have a viable claim against the anonymous defendants and that "the court then balance the First Amendment right of anonymous speech against the strength of the prima facie claim (a claim accepted at face value) and the need for disclosure of the anonymous defendant's identity," Selin wrote.
Seldin's order also noted that C.B. Paws also has notified anonymous posters that they are subject to a subpoena. Indeed, one month ago on a Google review of C.P. Paws, a poster named Dennis Baca took aim at the pet store's litigation, saying, "I have never shopped there and after reading about their nefarious actions, now I never will!!" C.B. Paws responded to the post a week later with the comment, "Notice: if you have posted anonymous or fictitious reviews on C.B. Paws' website, you are the subject of a subpoena or an application for an order of identity disclosure in Pitkin County District Court Case Number 2018 CV 30023, titled Pet Boutique, LLC v. John Doe."
The plaintiff's theory that a single person is behind the bevy of negative comments, Seldin noted, also is plausible. The judge wrote that even if the comments were accurate, "the act of assuming multiple different identities in an effort to amplify the impact of that content is misleading and constitutes false statements. If online reviews are a person's 'vote' on a business, in other words, the alleged single defendant here has committed voter fraud by casting multiple ballots."
For now, the case is about gathering the identity of the poster and verifying that it is a single individual, Seldin wrote.
"Only once the court has made that determination will it be in a position to weigh the First Amendment rights of anonymity at issue against plaintiff's right to proceed on the claims," the order said.
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