Reviews Posted Under A Pseudonym Could Be Defamatory

Richard Raysman is a Partner in the New York office

As written on this blog before, plaintiffs often have difficulty when alleging claims of defamation against anonymous defendants. Unsurprisingly, websites that provide a forum for anonymous commentary are loathe to reveal the "true" identity of such commenters, if only because it would disincentivize users from frequenting the forum in the future. A recent case in California offers a twist on the common theme of ascertaining the offeror of online vitriol when seeking a viable cause of action for defamation. The twist concerns the attempt to use an anonymous identity to make defamatory statements online not via no name at all, but through the use of a name of a fictitious person.

In Judge v. Randell, No. A138481 (Cal. Ct. App. July 7, 2014), Greg Judge (Judge) sued Lori Randell (Randell) for defamation. The claims were based in large part on highly negative online reviews concerning Judge's business. However, in the twist on a typical online defamation matter, Judge did not seek to discover the identity of Randell, but whether Randell had created a fake individual to post pejorative reviews about Judge's business. As background, Randell had hired Judge, vial oral contract, to perform construction work on her backyard. Judge attempted to have Randell sign a written contract, but she refused. Judge then commenced work on the project, only to have Randell evict him from the job site without payment. Thereafter, Jeffrey Glassman (Glassman), who had earlier purported to be the attorney for Randell, began posting reviews on a variety of websites alleging that Judge was "inethical, [and] untrustworthy [sic]" and drunk on the job.

Judge sued Randell/Glassmen for defamation. Judge alleged that Randell was actually Glassmen, and thus responsible for the allegedly defamatory posts. The trial court found that Judge presented insufficient evidence to determine whether Glassmen and Randell were one and the same. However, Judge nonetheless prevailed on the grounds that Glassmen was acting as Randell's agent for this purpose, and therefore Randell was liable as the principal who approved the defamatory remarks.

Throughout the proceedings, Randell/Glassmen had utilized an anti-SLAPP motion to strike against Judge as its primary defense. The anti-SLAPP statute in California applies when a "cause of action arises from an act in further of defendant's constitutional right of petition or free speech in...