Photo illustration shows projection of binary code on a man holding a laptop computer. (Reuters)
Should the identities of those who post negative, potentially defamatory comments on online forums be disclosed? Is it fair for businesses to have to deal with these censures from faceless posters online? Or, on the flip side, would such a disclosure of information threaten protections of Freedom of Speech on the Web? These are the central questions at the heart of an ongoing legal case that is currently on appeal in the state of Washington.
“Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything … My interests were simply not protected in any meaningful way,” wrote a user simply known as “Divorce Client” on attorney review site Avvo.com. The anonymous user was reviewing Tampa, Fla.-based divorce and family law attorney Deborah Thomson.
Directly underneath, Thomson responded to the criticisms.
“The writer of this review was not an actual client of mine,” she wrote. “This is a personal attack from someone that I know …. Unfortunately, AVVO does not verify the information contained in a negative client review, nor does it verify that a person was, in fact, an actual client, before allowing it to post on an attorney’s profile.”
For an attorney, as with anyone who provides a service that is being publicly reviewed online, reputation is everything. Thomson has an average of four and a half-star rating — out of a total of five – on the site. This is based on 11 reviews, as of publication, and is the only negative one. Thomson, a partner at The Women’s Law Group, filed a defamation suit against the reviewer. Avvo is based in Seattle, and her suit asks the courts to subpoena for information that would reveal the reviewer’s identity, reports the Tampa Bay Times.
According to Avvo, this case is the exception to the rule.
"I don't know if we deal with a lot, or deal regularly with these kinds of complaints. In general, attorneys will bristle when they get negative reviews, particularly when they are from anonymous sources, but it's important for us to provide a forum that is useful and friendly for consumers," Josh King, general counsel for Avvo.com, told FoxNews.com. "A lot of consumers want to post reviews anonymously. We moderate all of our reviews before they get posted. We filter out stuff that looks obviously fraudulent or looks like it didn't come from an actual consumer."
The case is complex and potentially precedent-setting.
“It seems to me there are a number of circumstances where people have good reasons to remain anonymous. Of course, there are bad reasons to remain anonymous, such as lying about somebody, outwardly trying to hurt somebody’s reputation,” Paul Alan Levy, an attorney with the Public Citizen Litigation Group, told FoxNews.com.
“It’s all about how do we create an environment where it’s okay to post anonymously as long as you don’t abuse your rights to be anonymous? How do we provide a means of enforcement against defamation? The solution is there has to be a multi-part test that plaintiffs have to meet if they are going to try to compel a government power to compel a private party to disclose and identify a person in this kind of situation,” he added.
Levy is closely connected to this kind of case. He was an architect of the set of guidelines for designating circumstances in which the identities of anonymous online commentators can be revealed. These guidelines sprung up from a 2001 case out of New Jersey, in which Dendrite International Inc., a computer software company widely used by the pharmaceutical industry, sued anonymous posters on a Yahoo message board.
Levy’s guidelines are five-pronged. First of all, plaintiffs have to notify the posters about the legal action against them. The allegedly defamatory statements then have to be clearly identified and presented to the court, and the plaintiff then has to offer a “prima facie cause of action,” which just means that there is enough proof that the case has a chance of winning. Finally, the court has to weigh the strength of the prima facie case against the defendant’s First Amendment right to free, anonymous speech. Levy added that the guidelines have been utilized in other cases.
Test or no test, the process of this kind of case is complicated.
“Not every state has the same standards, and we are seeing these standards develop as each of these kinds of cases arise,” said David S. Ardia, an assistant professor of law and the co-director of the Center for Media Law and Policy at the University of North Carolina School of Law. “There are still a lot of states that haven’t weighed in yet on standards for handling these kinds of cases in court.”
King reiterated that as long as a post to Avvo meets the site's "community guidelines" it will be published. In cases like this one, when an attorney like Thomson requests a subpoena, Avvo will directly reach out to the poster and ask them to provide evidence that they are an actual client of the lawyer and make sure that the review isn't in any way defamatory.
"Sometimes we will go back to the attorney and notify them that the person gave me proof that they were an actual client and that this information was not defamatory," King added. "Half the time, the lawyers will drop the subpoena, but in cases like this one, they don't."
While there are countless online forums rife with anonymous, sometimes disparaging, comments made against individuals, Ardia told FoxNews.com that this isn’t a phenomenon new to the Internet.
“Just look at the formative years of the American Constitution. The questions arose of how do you create a space within society where people can debate important issues on their substance, it was an experiment,” Ardia said. “In many other countries, there was no public space for discourse that is not completely controlled by the government or a church, where these governing bodies didn’t hold sway over what people could or couldn’t say. That’s not the approach that the founders wanted in the United States.”
As a result of this, Ardia said the drafters of the United States Constitution made sure that people could debate “without fear of repercussions.”
“Anonymous speech creates that separation between the identity of the speaker and the speech itself,” he added.
That being said, has there been an increase in these kinds of cases with the rise of forums like social media that are particularly friendly to anonymous critics?
Ardia suggested that while that might be the case, things are not as anonymous as they seem on the Internet.
“Everything is available. Information is being gathered, the Internet knows what food you eat, what time you go to bed, how long your commute is to work – all of these things are being collected and aggregated,” he said.
What has changed is what Ardia described as a shift in the balance of power between consumers and those who provide services. Now the consumer doesn’t have to rely on official reviews of products or services. Instead, they can take things in their own hands.
“One thing that you have to keep in mind is a lot of these posts are really just opinions,” Levy asserted. “If you say ‘so and so didn’t do a good job,’ well that’s an opinion. If you say ‘she didn’t show up to the job,’ then that’s a fact. If that fact isn’t true, then that can be defamatory and could hurt somebody’s reputation.”
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