From the desk of Joshua P. Hayward: Must a business turn over records regarding the identity of a user of its website, who posted a negative review anonymously, to a plaintiff who has filed a defamation claim against the anonymous reviewer? Read on to see how the Washington Court of Appeals addressed this new question.
Claims Pointer: For the first time in Washington, the Court of Appeals established that a court must apply the following analysis in determining whether to compel production of the identity of an anonymous speaker. First, the plaintiff must attempt to notify the anonymous poster in question that there is a claim against them, including posting on the message board where the statement was made. Second, the plaintiff must put forth sufficient evidence that would establish a prima facie case of defamation. In order to determine how much evidence is “sufficient,” the court must determine the nature of the speech (i.e. commercial, political, etc.) in order to determine the appropriate test. In this case, the court applied an intermediate standard of “prima facie” evidence because the speech was neither political (highly protected) nor was it purely commercial (less protected speech—i.e. advertising). The plaintiff could not force the business to turn over the anonymous poster’s identity because she presented no evidence to support her claim.
Deborah Thomson v. Jane Doe, No 72321-9-I, 2015 WL 4086923, Washington Court of Appeals, Division 1, (July 6, 2015).
Deborah Thomson, a Florida attorney, filed a defamation action in a lawsuit in Florida against “Jane Doe” after she discovered the following review of her legal services on the attorney rating website “Avvo.com”:
“I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had...