A case before the Washington Court of Appeals will help Avvo determine when to unmask anonymous client reviews. It also illustrates what many believe to be a common problem with online reviews: fake ones. What if someone who doesn’t like you decides to hurt you by posing as a client in order to post a negative review on your Avvo profile?
In her defamation lawsuit, Florida lawyer Deborah Thomson alleges exactly that. She says the author of a one-star review on her Avvo profile was not written by a client. But Avvo decided to fight Thomson’s subpoena and won in the district court.
Here’s the background on Thomson’s lawsuit, Avvo’s procedures for preventing fake client, and why it is fighting the subpoena.
The One-Star Review
Thomson has an Avvo Rating of 8.6 and a client rating of about 4.5 stars. That client rating would be five stars except for this review:
The same person apparently left reviews on Yelp! and Google. Thomson left a response on her Avvo profile:
The writer of this review was not an actual client of mine. This is a personal attack from someone that I know. …
Client Ratings on Avvo
Avvo actually gives you two ratings:
- The well-known Avvo Rating is a number from one to ten that is calculated from information about you on your Avvo profile.
- Your client rating is an average of the one-to-five stars given to you by clients who post a review to your Avvo profile.
Client ratings don’t figure into your Avvo Rating, and vice-versa. Both are displayed prominently on your Avvo profile. Thomson is obviously exercised about the second rating and — more particularly — that one-star review.
How Avvo Tries to Prevent Fake Reviews
In her response to the one-star review, Thomson claimed that Avvo does not verify client reviews.
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.
That’s mostly accurate, but it’s not the whole story. According to Avvo’s general counsel, Josh King, Avvo does take a variety of steps, some proactive and some reactive, to try to weed out fake reviews.
- First of all, every review is moderated by a human being before it is published on a lawyer’s profile. Among other things, Avvo’s moderators look for any indication that the reviewer is not actually a client. For example, Avvo gets reviews from friends and family members, opposing counsel, and probably bots and trolls. This is usually obvious from the review itself. With its new Advisor service, however, Avvo might know for a fact that some reviews come from actual clients.
- If a lawyer contacts Avvo to complain that a review was left by someone other than a client, Avvo will take a second look at the review to make sure it was properly approved. If the review survives this second round of moderation, it stays up.
- If the lawyer wants to dispute the matter further, Avvo will unpublish the review and contact the reviewer. The form Avvo sends asks the reviewer to take another look at the review and make sure they were really a client and that this was actually their lawyer. If the reviewer re-affirms the review, it goes back on the lawyer’s profile.
So far, Avvo hasn’t done any independent verification. It’s basically just taking the reviewer’s word for everything. It’s a process that reflects Avvo’s view: the best way to respond to a negative review is by responding to it on your profile — which you can do. Or in First Amendment terms, the best response to bad speech is more speech.
Lawyers who aren’t satisfied with that generally file a defamation lawsuit and subpoena Avvo for the identity of the reviewer. This is usually the point at which King gets involved, and he says it happens about a dozen times a year.
When King gets a subpoena, he generally contacts the lawyer in question to find out their theory of the case. Sometimes the lawyer has enough information to allow him to figure out who left the review. In one case, for example, it turned out that the reviewer was actually another lawyer — who was even logged in to Avvo when she left the review. But usually King tries to talk the lawyer out of the lawsuit by explaining the Streisand Effect. If that doesn’t work, King notifies the reviewer. If the reviewer can prove to King’s satisfaction that he or she is actually a client, Avvo will fight the subpoena.
King says this happens about half the time. He says he often gets signed retainers, pleadings, correspondence, and other pretty clear evidence that there was an attorney-client relationship. The other half of the time, presumably, Avvo unmasks the reviewer.
Back to Thomson v. Doe
Thomson apparently went through all of Avvo’s procedures in this case. Avvo’s review moderators cleared the review. Thomson disputed the review and Avvo confirmed it with the reviewer. Then she served a subpoena and King investigated. He said he is satisfied that Thomson’s reviewer was actually her client.
Assuming that’s true, it’s hard to see what Thomson is trying to accomplish with her lawsuit. The review is one of eleven on her profile, and Thomson still has a 4.5 client rating (which, honestly, looks better than her Avvo Rating). Any sensible person looking over her reviews would see that one-star review as an outlier. The other reviews call her exceptional, trustworthy, caring, highly recommended, and so on.
What she may accomplish, although it probably isn’t her goal, is to establish the law of unmasking anonymous commenters in defamation lawsuits in Washington. King hopes the Washington Court of Appeals will do more than simply require a plaintiff to properly allege defamation.
In the appellate brief (pdf) Public Citizen filed on behalf of Doe, it argues that a plaintiff should essentially have to establish a prima facie case, including evidence supporting each element of the claims. Then, it says, the court should balance the potential harm to each party in light of the strength of the plaintiff’s evidence.
That’s a heftier burden that makes it harder to unmask anonymous online commenters, which is either a good thing or a bad thing depending on how you feel about the importance of anonymous ratings. It’s pretty clear which side Avvo comes down on, at least. Lawyers who feel they’ve been wronged by a reviewer online probably feel differently.
Update: After I spoke with King for this article, he posted “Protecting Anonymity in Client Reviews” on his own blog.
Update 2: Avvo and Public Citizen won. Here’s Public Citizen’s Paul Alan Levy summarizing the outcome:
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 ….
Featured image: “One Star Rating On Blackboard With White Chalk” from Shutterstock.