The ABA Journal and several newspapers have picked up the news that we’ve got a legal issue brewing here in Washington over anonymous online reviews, so I thought I’d provide a little context.
I’m going to skip the background (which you can read in the ABA Journal article) and just cut right to the issues.
First of all, anonymous speech: Avvo allows reviews to be left anonymously. Attorneys can argue about whether such feedback is useful, but here’s my take:
- The US has a long history – including, notably, the Federalist Papers – of anonymous speech.
- The Supreme Court has repeatedly found that such speech is valuable and constitutionally protected.
- In my nearly 8 years at Avvo, I have had numerous conversations that expose the reason for this value and constitutional protection: reviewers who fear retaliation from attorneys for speaking, and attorneys bent on exacting such retaliation.
- Readers can decide for themselves how to weigh feedback. Anonymity is another factor, just like coherence, detail, and reasonableness, that potential clients can take into account when reading a review.
So while we do a lot to try to ensure review quality – including human moderation prior to posting – you shouldn’t expect anonymous reviews on Avvo to go away any time soon.
The issue in this case is what happens when an attorney believes they’ve been defamed by a review. That’s what the plaintiff believed here; she thought that the review was left by a non-client, and that the facts alleged in the review were false. So she brought a John Doe complaint for defamation and subpoenaed Avvo for records that might “unmask” the anonymous reviewer.
In such cases, I notify the reviewer to let them know that records that might reveal their identity have been subpoenaed. This way, they have the opportunity to fight the unmasking. What’s more, if they can prove to my satisfaction that they were a client, and they have a good faith argument that their review isn’t defamatory, Avvo will actually fight the subpoena on their behalf. That feels like something we need to stand up for if we’re going to have a credible, consumer-focused forum for client feedback.
That’s what happened in this case. The reviewer made such a showing, the plaintiff refused to withdraw her subpoena, and Avvo refused to turn over the identity of the reviewer. The plaintiff brought a motion to compel production. We opposed it, and won. The plaintiff appealed, which brings us to last week’s hearing.
At stake is how Washington will answer a developing question: under what circumstances can a defamation plaintiff unmask an anonymous defendant? The coalescing standard – known as the Dendrite standard for the New Jersey case in which the issue was decided – requires both that the plaintiff make a prima facie showing that they have a case, with evidence, and that the court balance the need for unmasking and the strength of the prima facie case against the first amendment right to speak anonymously.
We’re hopeful that the Washington Court of Appeals will affirm Avvo’s lower court win and help establish a clear rule that protects the right to speak anonymously – while preserving the ability of defamation plaintiffs to move forward with discovery on meritorious cases.
Here’s one additional takeaway for attorneys: subpoenaing the identity of anonymous commenters is different. You can’t expect to get wide-and-unfettered third party discovery the same way you might when subpoenaing say, gas station bathroom cleaning logs.