Washington Appeals Court Refuses to Compel Unmasking of Anonymous Avvo Critic Absent Evidence of Defamation

Thomson v. Doe, No. 72321-9-1 (Washington Court of Appeals, July 6, 2015)

Link to opinion (hosted by Citizen.org)

The Washington Court of Appeals affirmed the King County Superior Court’s denial of a motion to compel disclosure of an anonymous critic’s identity.

The Court of Appeals held that—absent evidence of defamation—a third party website is not required to unmask an anonymous defendant who posted a negative review on the plaintiff’s profile. In so holding, the court adopted an analysis similar to the widely cited Dendrite test for the showing a defamation plaintiff must make on a motion to compel disclosure of a Doe defendant’s identity. Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Commentators have called this a victory for anonymity: before the court will unmask an anonymous internet poster in a defamation suit, the plaintiff must provide evidence supporting her claim.

Lexology and the ABA Journal provide an overview of the case. The popular tech website GeekWire has celebrated the decision for the protection it offers to anonymous internet posters, calling it a “victory for anonymous commenters.”

Florida lawyer Deborah Thompson attempted to unmask an anonymous critic who left a negative review on her Avvo.com profile. Thompson alleged that the review was false and that the poster was not her actual client, and filed a defamation suit against the poster. She subpoenaed Avvo.com for records showing the poster’s identity. Avvo—a Washington based legal services website allowing clients to submit reviews of practicing attorneys—challenged the subpoena because they believed the poster was a genuine client. Thompson subsequently filed a motion to compel which was denied by the trial court, and Thomson appealed. The Washington Court of Appeals, presented with a matter of first impression in its state, had to determine what kind of showing Thompson had to make to compel disclosure of the poster’s identity.

The Court reviewed the trial court’s decision de novo because of the case’s First Amendment implications. As a threshold matter, the Court held that the anonymous review was neither political nor commercial speech, but was intermediate speech entitled to an intermediate level of First Amendment protection. The Court adopted a test similar to the widely cited Dendrite test for assessing a motion to compel disclosure of an anonymous poster’s identity. But it departed from Dendrite in that it adopted a sliding scale—as opposed to a single standard—for assessing the plaintiff’s case based on the nature of the speech at issue.

Dendrite is a four prong test requiring that the plaintiff (1) attempt to notify the anonymous defendant that they are subject of an unmasking subpoena, (2) identify the defamatory statements, (3) produce sufficient evidence that satisfies the summary judgment standard, and (4) present a case that survives a balancing test as to the defendant’s First Amendment rights.

The court agreed with Dendrite’s notice requirement, but it rejected prong (3) and adopted a different evidentiary standard for assessing a plaintiff’s unmasking request. Whereas the Dendrite test requires a plaintiff to provide evidence that would survive a summary judgment motion, the Thomson court adopted a sliding scale: the appropriate evidentiary standard is contingent on the type of speech at issue and the case’s procedural posture.

Channeling his inner Goldilocks, Judge Appelwick settled on a prima facie standard for the case at hand. A summary judgment standard was too severe given that the plaintiff subpoenaed Avvo without the defendant’s involvement. The defendant did not have notice of the lawsuit until Avvo notified her and she had not answered the complaint. Thus she was in no position to make a summary judgment motion.  A motion to dismiss standard was rejected as it was not stringent enough (nor was the good faith standard, which sets an even lower bar). This is so because Washington is a notice pleading state—and thus does not require a high bar for a sufficiently stated claim. However, the prima facie case standard was just right—it would avoid unnecessary disclosure while allowing the plaintiff to obtain the defendant’s identity if her case is meritorious.

Given that the court adopted a sliding scale, a different standard might be appropriate if the court is presented with different set of facts. If the speech is political (or commercial), or if the defendant is in a position to make a summary judgment motion, the required showing would be different. Here the defendant’s Avvo review was not political speech, which informed the court’s decision to use the prima facie standard. However, because the plaintiff provided no evidence whatsoever to support her request, the court affirmed the trial court’s denial of her motion to compel.

Thomson is a victory for anonymous commenters: it protects their ability to anonymously post on the internet without fearing that their identities will be unmasked. By adopting a sliding scale, the court built in flexibility allowing Washington courts to adequately balance defamation plaintiffs’ interests against defendants’ free speech rights.