Look at any website that permits the public to post comments, and you are likely to see derogatory commentary posted anonymously by users. If you are the subject of a defamatory comment, what showing must be made in order to force the website to reveal the identity of an anonymous commenter?
On July 6, 2015, the Washington State Court of Appeals became the latest jurisdiction to decide under what circumstances a plaintiff in a defamation lawsuit may discover the identity of an anonymous online commenter, holding in Thomson v. Doe that in most cases such disclosure will not be permitted absent the plaintiff presented a prima facie claim of defamation.
Thomson v. Doe involved a negative review posted on a Florida lawyer’s Avvo page. (For those who may not know, Avvo.com is a lawyer review and rating website, which includes a comment section where users can post ratings and comments on a particular lawyer — anonymously or not.) Attorney Deborah Thomas filed a defamation lawsuit in Florida against a commenter who anonymously posted the following review on Thomson’s Avvo page:
I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine-hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.
Thomson contended that the statements in the review were false and were not posted by an actual client, and subpoenaed Avvo in an attempt to uncover the identity of the poster. When Avvo refused to comply with the subpoena, Thomson moved to compel.
In opposing the motion, Avvo contended the Thomson had failed to show that the review was defamatory and had not provided any evidence of damages. The trial court agreed and denied Thomson’s motion to compel as she had failed to make a prima facie showing regarding her defamation claim. Thomson appealed.
The Washington Appeals Court noted that the nature of the speech at issue must be considered when a court is faced with a motion seeking disclosure of an anonymous commenter. Commercial speech is offered less Constitutional protection, and political speech warrants the highest level of protection. The Court determined that Doe’s speech fell into neither category, providing it with an intermediate level of protection. The Court, therefore, rejected Thomson’s suggestion that only a “good faith” showing was necessary (allegations sufficient to withstand a motion to dismiss), since under that standard only the elements of the claim must be stated, which would be insufficient protection of the commenter’s First Amendment right to anonymous speech.
The Washington Supreme Court reviewed the various approaches taken by courts which have decided this issue and noted that the two leading decisions were Dendrite Intern., Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) (applying a 4-part test including a requirement that the plaintiff presents sufficient evidence in support of the defamation claim to support a prima facie case) and Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005) (using a modified Dendrite standard and requiring plaintiff to come forward with facts in support of the claim sufficient to satisfy the summary judgment standard). After reviewing each approach, the court determined that the “summary judgment” standard was too great of a burden and adopted the “prima facie case” standard, which requires the plaintiff to come forward with evidence sufficient to establish each element of her claim before the court will permit unmasking of an anonymous poster. Accordingly, the Court affirmed the trial court’s decision to deny the motion to compel. Left open was the possibility that Thomson could re-file her motion with citation to evidence sufficient to make out a prima facie case of defamation under Florida law.
Given the publicity Thomson’s case generated, this case also raises the issue of the risk posed by seeking to compel disclosure of the identity of the alleged defamer, in light of the fact that her poor review (even though alleged to be false) was unlikely to have been widely viewed prior to her lawsuit, but has now been extensively reported as part of the creation of new law in Washington state. This is known as the “Streisand Effect”: In 2003, Barbara Streisand sued a photography website to force the removal of photographs of her seaside mansion. At that time, the photos had only been downloaded a handful of times. Following the publicity of the lawsuit, the pictures were downloaded tens of thousands of times. A defamation victim – whether individual or corporate — should consider whether it is better to ignore malicious content on the Internet, rather than raise public awareness of the potentially defamatory speech through publicly filed litigation, especially in cases where damages can be difficult to prove.