Posted By Alan Sackrin on May 14, 2013
Anonymous reviews get posted on the internet all the time — at review sites like YellowPages.com and Yelp.com as well as shopping sites like Walmart.com or Amazon.com. No one seems to fret about good reviews: but more and more, there are people filing lawsuits over negative reviews posted online anonymously.
Can You Be Sued for an Anonymous Review? Yes.
Right now, there’s not one thing that stops someone from going down to the courthouse here in Florida and filing a lawsuit against someone else for defamation based upon a bad review written by “Anonymous.”
This alone is a big deal: by filing that lawsuit, the names of both the plaintiff and the defendant can be placed into the public record. Doesn’t matter who wins, who loses at this point.
So the first thing to recognize is that a lawsuit can be filed against you because the plaintiff has the right to file a civil suit. This public record entry means something — you may be asked to relate that you’ve been sued in future job applications, etc. — and it’s why in many controversies, negotiations to settle a claim are done before a case is formalized at the clerk’s office.
You can’t un-file a case once it’s been filed with the clerk (though you might get a gag order, in rare cases). You cannot un-ring that bell.
Of course, in an Anonymous Review lawsuit, your name isn’t in the public record at the outset, because the plaintiff does not know who you are. You’re anonymous.
Which means, in an Anonymous Review defamation case, the first major issue is whether or not your identity will be revealed, or if your anonymity will be protected as free speech under the United States Constitution.
The bigger question is whether or not you can successfully defend yourself in a defamation lawsuit based upon an anonymous review.
If you have published words or images (e.g., a video) that provide an opinion on someone’s work or service or product, etc. without revealing your true identity then you are an Anonymous Reviewer. You can sign the review “anonymous” or “the Easter Bunny” or “r456354” — doesn’t matter. If you don’t give your real name, then you’re anonymously leaving a review online.
In the United States, traditionally this role of Reviewer is respected as constitutionally protected free speech. Anonymous or not, you are traditionally viewed as having a right to your own opinion.
However, there are cases where plaintiffs have come before a court with lots of facts they argue prove substantial harm has resulted from an anonymous online review. So much so, that right now there are court cases providing guidance to judges on how to deal with these situations of the defendant as an Anonymous Reviewer in a defamation case. One of these cases is Dendrite Int’l Inc. v John Doe No. 3, 342 N.J. Super. 134, 754 A.2d 756 (2001).
The Dendrite Rule
A New Jersey appellate court wrote an opinion back in 2001 that has been read favorably by several other courts in other states, and the same set of rules used in that New Jersey case has been adopted by enough courts across the country that now it’s known as “the Dendrite Rule.”
In Dendrite, an individual who wrote an anonymous review (along with a company) was sued by someone unhappy with the anonymous message the person had written on an online (Yahoo) bulletin board. After the suit was filed, the plaintiff tried to find out the identity of this anonymous person by getting a court order forcing Yahoo to fork over the person’s name.
That New Jersey opinion explained:
“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.”
Dendrite, 754 A.2d at 760.
It provided the set of rules which have become known collectively as the “Dendrite Rule” (Dendrite, 754 A.2d at 141) which are:
1. The plaintiff must “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…. The “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 plaintiff must “identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.”
3. The plaintiff must establish to the court’s satisfaction that there exists a prima facie cause of action upon which the damages requested by the plaintiff from the anonymous defendant can be legally supported.
4. The plaintiff must have sufficient evidence for each element of the defamation cause of action.
5. Once these tests have been passed by the plaintiff, the court must then consider the anonymous defendant’s First Amendment right of free speech as it balances against the strength of the prima facie case, and in the balance consider if it is truly necessary to reveal the defendant’s identity.
If Your Identity Is Revealed Under the Dendrite Rule, Then It’s Pretty Much the Defense Team Who Is Up To Bat
Therefore, even though you may face being sued for an anonymous review, whether or not your name appears in the public record is a big question. Free speech constitutional protections may shield you from being revealed, period.
However, if the plaintiff can provide enough facts to build that “prima facie” case against you, then the judge may find that the plaintiff has met his or her burden to show an exception should be made to that Free Speech Shield protecting you. If this happens, then your defense team must be ready to work fast: the plaintiff’s pretty much done their job at this point in proving the “prima facie case” requirement of the Dendrite Rule – they can win if the defense isn’t strong against their claims.
More on Anonymous Reviewer Defamation Cases in future posts.