Online anonymity vs. the First Amendment

Privacy, Rights

NakedLaw previously reported on this ruling here; see below for a more detailed analysis of the case.

We’ve all been there: you wait an hour for a table, put up with the snide hostess, wait another 30 minutes to order, and send your food back twice. Then, after not getting enough to eat due to a miniscule-sized portion, you find yourself staring down at a mediocre slice of cheese pizza from the much-more-humble establishment down the street. And you missed your movie.

In days of old, bad experiences went as far as conversations could carry them, which means they typically fell by the wayside, allowing sub-par restaurants and service providers to operate as usual without much notice or consequence. Today, however, online reviews of everything—from lawyers to lunchrooms to laundromats—can be quickly posted on sites like Avvo, Yelp, or Google.

These services, which began as a way for users to make informed purchase decisions, have created a legal firestorm over the concept of online anonymity, fueling debate over whether reviewers should be required to identify themselves when sharing an experience like the restaurant visit described above. On the one hand, owners, fearing the financial fallout that might occur when a bad review makes its way around town, want to guard against the impact of fraudulent, exaggerated, or feigned negative feedback. On the other hand, site users are typically less likely to recount the details of their experience if full identification is required. This, of course, works against the goals of the review site.

As several inevitable defamation lawsuits sprung up around the nation over this issue, a state appellate court recently sided with the notion of anonymity in a decision described more fully below. The case highlighted the true fortitude of the First Amendment, even as it applies to sticky Internet issues like anonymous service reviews.

Events leading up to Thomson v. Doe

In 2014, Deborah Thomson, a Florida attorney specializing in divorce, sought to file a defamation lawsuit after a highly negative review was posted on Avvo (as well as Yelp and Google). The review was signed simply “Divorce Client.”

Upon seeing the review, Thomson issued a subpoena to compel Avvo to reveal the reviewer’s identity, presumably to facilitate filing the forthcoming defamation action. When Avvo refused, Thomson initiated a motion to force Avvo to comply with the subpoena, a motion that the trial court denied. In sum, the court reasoned that Thomson’s situation did not meet the criteria for defamation, and the Washington State Court of Appeals agreed.

Court defers to the First Amendment

In its opinion, the Washington State Court of Appeals summarized the application of the right to free speech to this particular situation, beginning with the established view that the right to free speech extends to anonymous statements, including those posted online. However, free speech rights do not extend to defamatory language, and a plaintiff may be able to overcome a free speech defense—and unmask a reviewer’s identity—if proper evidence is presented. This issue had not been previously litigated in Washington, prompting the court to turn to holdings in other jurisdictions for guidance.

Thomson argued that the court should adopt the same “good faith” test the Commonwealth of Virginia used when grappling with a similar case involving Yelp. This test requires the plaintiff to “establish a good faith basis to contend that the speaker committed defamation” before the reviewer’s identity can be revealed.

Avvo, on the other hand, argued that multi-point factors laid out by Delaware and New Jersey state courts were more appropriate. These factors require the plaintiff to prove that she tried to notify the reviewer first, can meet each element of defamation, and has been harmed by the negative review; even then, the court still must balance the reviewer’s free speech rights against the plaintiff’s right to know the defamer’s identity.

After considering both arguments, the court blazed its own trail, incorporating other recent holdings, including a decision made by the U.S. Court of Appeals for the Ninth Circuit’s that outlined threshold standards for types of speech (i.e., political, religious, literary, commercial, or private). After ruling out political, religious, literary, and commercial, the court concluded that the reviewer’s comments were, in fact, private in nature, which afforded an intermediate level of free speech protection.

Applying the intermediate speech standard, the court ultimately held that Thomson was required to show sufficient evidence to support a case of defamation before the identity of an anonymous speaker could be revealed. Unfortunately, and as she freely admitted, Thomson presented no evidence to support her case, and the trial court’s dismissal was proper.

While only binding on future similar cases in the state, the Washington ruling strengthens the network of consumers eager to avoid paying for lackluster dining experiences, and, more importantly, it protects the security of reviewers willing to publicize their experience, often to the dismay of business owners hoping to quiet the opinions of unhappy, underwhelmed clients and customers—a notion simply not supported by the expansive free speech rights offered by the First Amendment.