Anonymous commenting has won in Washington state.
A state appeals court sided with Avvo on Monday in the lawyer review site’s legal fight against a lawyer who sought to reveal the identity of an anonymous commenter she accused of defaming her in an Avvo review. The appeals court ruled that there must be evidence that the review is actually defamatory before the commenter’s identity is revealed.
The case, Thomson v. Doe, centered around an anonymous comment left on Florida lawyer Deborah Thomson’s Avvo page, which Thomson believes contains lies amounting to defamation. The review is the only one-star rating on Thomson’s page and is countered by 10 other five-star reviews.
The review and Thomson’s response are below:
The review, from “a divorce client,” says that the commenter is “still in court five years after Ms. Thomson represented me during my divorce proceedings,” and that Thomson “failed to show up for a nine hour mediation because she had vacation days.”
Thomson refutes these claims in a reply to the comment, saying “Five years ago, I was employed by a law firm, and any cases were not my own.” She added “A mediation would not occur if the attorney did not show up. Mediations are not scheduled for a specific amount of time, as indicated in the review.”
Thomson’s comment also claims that the reviewer “was not an actual client of mine. This is a personal attack from someone that I know.”
Thomson subpoenaed Avvo in Washington state to turn over any data it had about the commenter, including his or her IP address and email, so she could go forward with the defamation case in Florida. Avvo fought the subpoena.
An initial ruling earlier this year upheld the commenter’s First Amendment right to anonymity, which Thomson appealed. She lost the appeal yesterday, meaning the commenter can stay anonymous.
“As Thomson freely admits, she presented no evidence to support her motion,” the appeals court wrote. “Therefore, the trial court properly denied Thomson’s motion for failure to make a prima facie showing of defamation.”
This isn’t the first time Avvo has gotten a request to turn over information on anonymous commenters.
“We were sued the week we launched,” said Avvo general counsel Josh King. “I get a subpoena like this once or twice a month, and it’s been growing as we get bigger.”
King usually checks with the commenter when he gets a subpoena, and will only turn over information if the reviewer can’t prove that they were clients of the lawyer and the comments could actually amount to defamation.
Although the appeals court sided with Avvo on the central issues in the dispute, the judges also critiqued the company’s handling of the case: “Obtaining information from the anonymous poster allowed Avvo to make an informed response to Thomson,” they wrote. “Once in that position, Avvo should have afforded the trial court the opportunity for in camera review, so that it too could ground its decision in fact rather than speculation.”
If the case had gone the other way, King feared it could have dampened people’s ability to speak freely. “People will pursue these actions not so much because they think they’ve got a legitimate defamation case and they’ve got the right to damages” but rather to “convince someone that they’d be better off just shutting up,” King said.
The case helps set a standard in Washington state that is already found in at least 12 other states. The so-called Dendrite standard requires that the plaintiff must provide sufficient evidence that a statement causes harm before a company must comply with a subpoena and identify the anonymous commenter.