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Are Anonymous Reviews Legal?

By Aaron Minc on September 1, 2016

Anonymous Ratings and ReviewBeing a business owner in today’s digital age can be frustrating.  You strive to provide your customers with the best service and take their feedback very seriously. What happens when someone leaves a review on your site that is anonymous? You may feel very frustrated because you are not able to directly address that person’s concerns. Additionally, you may be angry because a nameless person could post a fake or defamatory review which could injure your name and reputation.  If you are wondering if people are allowed to leave anonymous reviews on your site, you are not alone.

Can a Person Post a Comment Anonymously?

Many online review sites encourage users to post reviews and comments about a particular business or service. Some of these sites will allow users to post their reviews anonymously. This can be troubling for a business because there is almost no way for the business to verify that this is an actual person or customer of the business. Unfortunately, it is fairly easy for people or for spammers to create multiple fake accounts and post a review on a business’s site.  Previously, there was not much that a business owner could do except maybe comment on the review and encourage readers to not believe the comments. However, people have begun questioning if posting fake reviews anonymously was legal, and if a business or person who had a negative comment posted about them could have the comment removed or find the person’s identity to sue them for defamation.

Thomson v. Jane Doe

One of the court cases that has come to national attention in the past few months and years is the case of Thomson v. Jane Doe, which may point to the future legality of anonymous posting.

In the case of Thomson v.  Jane Doe, Deborah Thomson a Florida family law attorney had a negative review posted about her on the popular website Avvo.  Ms. Thomson was concerned that the post was not from a legitimate source, and asked Avvo for the identity of the poster.  Avvo refused to release the name of the anonymous user so that Ms. Thomson could file a defamation suit, which prompted Ms. Thomson to file a motion to compel Avvo to comply with her request.  The Washington State Court of Appeals denied her request stating that she had not met all of the requirements to bring a defamation case.

In their ruling, the court noted that the First Amendment protects the right of people to speak anonymously.  The court also stated that while people are free to post anonymously online, the First Amendment does not protect defamatory statements.

While, Ms. Thomson may have lost because she did not demonstrate that she had been defamed, the Washington State Court of Appeals did note some other cases that had laid out procedures to identify an anonymous poster.

What is the Process to Uncover an Anonymous Poster?

One of the problems that the Internet and the courts in the United States is facing is that there is no singular law. As you may be aware, each state has its own laws in addition to the laws set by the federal government. However, in the case of Dendrite Int’l, Inc. v. Doe No. 3 the New Jersey intermediate appellate court set out a four-step process for determining whether to compel disclosure of the speaker’s identity:

  1. The trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board.
  2. The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.
  3. The complaint and all information provided to the court should be carefully reviewed to determine whether a plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted . . . , the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
  4. Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.

While this may reflect the current state of the law in New Jersey, it is not necessarily the law across the United States. However, this case gives a certain framework that an attorney may be able to use if an anonymous user has defamed you.

Legal Assistance for Anonymous False Reviews

If you are seeking options to minimize the damage that can potentially be caused by anonymous false and defamatory posts, the attorneys of  Meyers Roman Friedberg & Lewis LPA may be able to work with you. Contact us to schedule a free and confidential consultation where you can explore your legal options.  Aaron Michael Minc, an attorney with Meyers Roman Friedberg & Lewis LPA, focuses his practice on Internet law related issues. Aaron can be reached at (216) 831-0042 or aminc@meyersroman.com.


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