Washington State court rules that anonymous online reviewers are entitled to First Amendment protection

(Avvo.com)

This story has been updated with comments from Deborah Thomson.

In a decision Monday, the Washington Court of Appeals ruled that anonymous reviewers on websites like lawyer review site Avvo.com are entitled to First Amendment protections. In the case, Florida-based divorce and family law attorney Deborah Thomson filed a defamation suit against a poster who published an anonymous negative review of her on the site. She asked the court to subpoena for information that could reveal the poster’s identity.

The court denied the motion, finding that Thomson had not successfully made a “prima facie claim of defamation,” or in other words, there wasn’t enough proof that her case could win, according to the decision.

The case involving Thomson, a partner at Tampa, Fla.-based The Women’s Law Group, and the Seattle-based website is precedent-setting, Josh King, general counsel for Avvo.com, told FoxNews.com.

“A number of states dealt with this issue before, but Washington hadn’t done it yet,” King said. “What we see in this case is Washington joining states like California and New Jersey in that someone who wants to unmask an anonymous commenter has to provide the supporting evidence that they have a valid claim.”

The ramifications of the decision aren’t local, but national in scope, especially as more and more similar cases surrounding Free Speech online spring up.

Related: Court case over anonymous online poster sparks Free Speech debate

“This is as strong a decision in support of anonymous Free Speech that I have seen,” 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, told FoxNews.com. “It adopts the heightened level of proof that’s required in terms of what the plaintiff needed to succeed. It does a nice job of identifying what is a key issue that the court comes down to. It shows that, in order for some sort of irrevocable disclosure of someone’s identity -- once someone’s identified the cat can’t be put back in the bag -- you need to produce some evidence that will ensure the plaintiff will succeed in their claim.”

For Thomson, the decision wasn't a surprise.

"For me, honestly, it was expected and the other side will agree," Thomson told FoxNews.com. "What we were looking for was guidance from the appellate court ... What it (the decision) has done, is given me guidance to figure out what I needed to do."

So, what could someone like Thomson have done differently?

“Thomson’s approach in this case was a little odd, I think her attorneys assumed they wouldn’t have to do anything more than be able to sue, to say this was defamatory. In many jurisdictions, all that’s required to make the allegations in a complaint is to put the other side on notice about what they are being sued for, it’s very minimal,” Ardia said.

“The court says they could have included some additional information to show that their client would be capable of producing evidence of succeeding in that claim,” he added.

Thomson said that she initially filed a defamation complaint in Hillsborough County, Florida, and that the procedural requirements were for her to seek records from Avvo.com of the poster. The site denied that request.

"The argument with the court is, 'well I can't prove my case until I get the records I need, but I can't get the records I need until I prove my case. It's a catch-22," she said.

Thomson said she believes the negative post on the site is not from an actual client at all, but is instead "a personal attack."

In the original post, the anonymous reviewer wrote that Thomson lacked "basic business skills" and that her "detachment from her fiduciary responsibilities has cost me everything."

"My interests were simply not protected in any meaningful way,” wrote the user, simply known as “Divorce Client,” on the site.

"Whether a client or not, what is written on there is false," Thomson added. "That's the reason I'm pursuing it."

So, what's next for Thomson? She said that will go on to amend her complaint, issue another subpoena, hopefully obtain the records she needs from Avvo.com, and then continue on with her defamation suit.

"What the board is saying is that I and any other person in my situation needs to set forth evidence with their complaints. It's evidence that is showing that what is written couldn't possibly be true," Thomson added.

Part of the irony of these kinds of cases is that the plaintiff sometimes suffers from what is known as the so-called “Streisand effect,” in which attempts to remove or censor some information end up drawing more attention to it in the first place. Thomson, who currently has a high average Avvo.com score of 8.6 out of 10, ended up drawing more attention to that one specific negative review.

“I’ve met her (Thomson) and talked with her, and I wouldn’t be surprised at all if she ordinarily provides really good services to her clients,” King suggested. “We all have bad days, and we all work with people who can’t be satisfied, and even the best attorneys will sometimes get a negative review.”

Ardia said that the standards set by this case could be applied more broadly, especially in areas of political discourse.

“The court spends a little bit of time on the type of speech at issue, and that’s not I would say the majority approach for most of the states that have imposed these heightened standards (of speech protection),” Ardia said. “Most of the speech torts (a civil wrong) have some focus on public interest involved in speech. Speech that tends to be political in nature tends to be at the core of what the First Amendment protects. Speech that is not of the public interest is at the other end of the spectrum.”

“The court’s language has imposed a fairly high standard, and leaves the door open for even a higher standard in contexts where speech in issue is speech about government or political speech — it could apply to a higher standard in other cases where the speech is more valuable to the public discourse,” he added.

Thomson said that she has never experienced something like this before in her career and that she has received "tremendous support" from other professionals both in her community and "across the nation."

"A lot of people agree that it is very easy for any individual to sit down in the comfort of their home and decide to post something false about somebody without any repercussions," Thomson said. "They have been very supportive of this (the case) and said that they have been through the same thing."

Thomson said she wanted to make clear that she is "not opposing Free Speech."

"This is opposing defamatory speech, where people post false things about somebody else and don't lay claim to it," she said. "I'm 100 percent for Free Speech, but not for defamatory speech."

If Thomson decided to appeal the decision, the case could eventually head to the Washington Supreme Court, Ardia suggested.

“It’s that important of an issue,” he said. “It does fall within the state’s role to recognize this speech and highlights the importance of protecting anonymity that can benefit a society on these kinds of sites. Yet, you don’t want to foreclose on the plaintiff’s ability to have her day in court. It’s about being on the side of valuing and protecting anonymous speech.”