by Paul Alan Levy
In a decision issued today, the Washington Court of Appeals has embraced the broad consensus among state and federal courts holding that plaintiffs who want courts to force service providers to provide identifying information about anonymous online speakers must both provide notice to the speakers and present evidence of wrongdoing, for example evidence of falsity if the claim is one for defamation, instead of resting on general allegations.
The issue arose in the context of a review on Avvo, the lawyer rating web site, in which a former client of Florida divorce lawyer Deborah Thomson criticized her handling of the client’s case. Thomson sued in Florida for defamation (identifying as defamatory not only the Avvo review but two others as well), but she served a subpoena only on Avvo, which refused to comply citing the client’s First Amendment right to speak anonymously. The trial court refused enforcement, and after Thomson appealed, the Doe retained Public Citizen to join Avvo in arguing for affirmance.
The Court of Appeals squarely rejected Thomson’s argument that it is enough for a plaintiff to claim that she filed her lawsuit in good faith; it agreed with the Delaware Supreme Court in Doe v. Cahill and the New Jersey Appellate Division in Dendrite International v. Doe that a plaintiff has to present evidence. The court addressed the distinction that some courts have drawn between obligating the plaintiff to produce enough evidence to establish a prima facie case and insisting that the plaintiff meet a summary judgment standard which, the court said, is a more rigorous test under Washington state law. The court said that the prima facie test is sufficient when it is only the ISP that is objecting to the discovery but the plaintiff should have to survive a summary judgment analysis when the Doe herself has sought to quash the subpoena.
The Court of Appeals also drew an interesting distinction about the levels of proof needed depending on the nature of the speech at issue. The court said that when the anonymous speech is commercial, some lesser standard of proof should be imposed, but when the speech is political, it is a higher standard. This case, involving comments by a consumer about a professional, warrants only intermediate protection and hence the Dendrite / Cahill approach was the right one. Interestingly, this approach suggests that in a case such as Cahill, where the plaintiff was a Delaware politician, or Pilchesky v Gatelli, where the plaintiff was a city council chair, some higher level of proof might be called for.
Finally, both Avvo and the Doe urged the Court of Appeals to embrace the final stage of the Dendrite approach, which calls for an express case-by-case balancing stage even after the prima facie or summary judgment standard is met. The Washington court agreed with the Arizona Court of Appeals in Mobilisa v. Doe that “certain cases present facts that could necessitate application of the balancing prong,” and hence that “Dendrite balancing might be appropriate ion some cases.” However, because the record on appeal did not present any facts justifying such balancing, the court chose not to speak further about that stage of the analysis. This reticence strikes me as a bit odd in light of the fact that the Court of Appeals was ready to vary the level of proof needed depending on whether the speech was commercial, political or critical of a business (itself a form of balancing), and whether the anonymous speaker has appeared to defend her anonymity.
Special Kudos to Avvo for Litigating Its Users' Anonymity Rights
As in the Glassdoor case that I discussed on this blog last month, Thomson is a case in which Avvo, the host of the critical comments deserves special recognition for standing up for the rights of its anonymous user by not only giving notice so that the Doe could defend herself (the gender pronoun is used generically here), but paying private counsel to demand application of the First Amendment test and even to articulate the several reasons why the First Amendment test was not satisfied on the record before the Court.