People are making much ado about this week’s decision out of a Washington state appellate court surrounding a negative online review on the popular lawyer website Avvo.com. But it’s really much ado about nothing. The Avvo decision didn’t change the law; its chief holding is that people who post to the Internet anonymously can remain anonymous under protections granted by the First Amendment, that you cannot unmask the anonymous poster unless you show the court evidence to support the underlying defamation claim. The holding does not give a green light to Internet trolls everywhere to engage in malicious cyber-defamation campaigns at will.
As in every appellate court decision, the court in Thomson v. Doe considered a host of factual circumstances, analyzed how other courts across the country have dealt with similar situations, and then weighed the equities, before arriving at what the court believed was the most fair result. The relevant facts were that a disgruntled, disillusioned, or ill-willed family court litigant in the state of Florida wrote a negative review about attorney Deborah L. Thomson at Avvo.com. The reviewer accused Thomson of not being prepared, failing to perform essential duties, and lacking basic business skills. For whatever reason, the purported client chose to identify him or herself only as “a Divorce client.” Prior to that, Deborah Thomson had never received a negative client review; thus, she questioned whether the anonymous reviewer was really a former client, or just someone trying to make her look bad.
Thomson went to Avvo, and served them with a subpoena, seeking the poster’s identity. Enter Avvo’s VP & General Counsel Josh King (@joshuamking): “[I]f 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.” According to Josh, he personally spoke with the anonymous poster, and based on his interaction with that individual, he was reasonably sure that the person was Thomson’s former client. After Avvo declined to unmask the anonymous poster, Thomson filed a motion in Washington state court, to compel Avvo to comply with the subpoena. This is where she went wrong.
Deborah Thomson, who is a Florida family law attorney, acted as her own attorney in the defamation case. Aside from the fact that defamation isn’t family law, the standards for enforcing compliance with a subpoena are quite different in family court than they are in other courts. Perhaps you don’t have to show anything to a Florida family judge to get a subpoena enforced, but that isn’t the case here. Nonetheless, Thomson went before the Washington court armed with nothing, except her allegations that the anonymous poster defamed her. Had she had any evidence (or perhaps a defamation or First Amendment attorney) the outcome, likely, would’ve been different. The trial court denied Thomson’s motion, and she appealed.
This was the last paragraph of the appellate court’s opinion:
As Thomson freely admits, she presented no evidence to support her motion. Therefore, the trial court properly denied Thomson’s motion for failure to make a prima facie showing of defamation.
Read the full opinion (PDF).
Personally (and professionally) I feel badly for Ms. Thomson. She believes she was wronged by this person, which may be true — there are 11 client reviews on her Avvo profile, all of them superb, except for the anonymous one left Sep. 24, 2013. In her response to “Divorce client,” Thomson raises several good points that call into question whether the person was even a former client or not. Although I have faith in Josh King at Avvo, and generally concur with his ideologies and principles, I’m at least a little curious about what reliable methods he uses to verify an anonymous poster’s identity.