For seemingly the first time in Colorado, the state’s Court of Appeals has ruled that a Colorado Springs doctor may seek to unmask the anonymous person or people behind a series of negative online reviews about her business.

First Amendment attorneys described the decision of the three-judge panel as an attempt to reconcile longstanding rules on defamation with the proliferation of online commentary that may target an individual or business’s reputation. In practice, internet anonymity can encourage the sharing of honest views on the one hand, while it can also act as a shield for inflammatory speech on the other.

“This opinion sets a nice balance between allowing these lawsuits to proceed – allowing litigants to try and uncover the identities of anonymous sources online – but it does offer an opportunity for opinions to remain protected speech,” said Jessica Smith, an associate with Holland & Hart.

Although the First Amendment protects opinions, including those given anonymously, the same is not true for information that can be proven false. In Colorado, defamation consists of untrue, damaging statements to a third party about someone. The appellate panel decided on Thursday that a judge wrongfully blocked dermatologist Susan Schroeder from seeking the identity of a dissatisfied online reviewer, noting there was at least one factual statement that could potentially be false among the user’s otherwise subjective ratings. 

Schroeder and her business, Perfect Skin Dermatology, had filed suit against the anonymous person (or persons) for defamation and trade libel, stemming from the September 2019 discovery of a series of negative ratings on Vitals.com. The website functions as a repository for reviews of doctors, and it contained 32 reviews giving Schroeder low ratings or commenting negatively about her operation based on such criteria as accuracy of diagnosis and friendliness of staff.

Schroeder and Perfect Skin Dermatology labeled the defendant “John Doe” in their lawsuit, even though it was unclear whether the reviews came from a man or even from one person. Schroeder alleged that Doe’s one-star reviews were false, defamatory and “do not represent actual customer experiences, complaints, or opinions.” She also claimed that the person behind the reviews intended to harass Schroeder and harm her professional reputation.

“It’s not just, ‘I had a bad experience.’ These are people who are saying my client provided incompetent medical care,” attorney Hilary D. Wells told the appellate panel.

District Court Judge Gregory R. Werner authorized Schroeder to serve subpoenas on Vitals.com and internet service providers to discover Doe’s identity. Vitals.com disclosed the internet protocol (IP) addresses from which the reviews were posted and Schroeder used the information to serve her subpoena on Comcast seeking Doe’s identifying information. The company informed Doe, who was then able to successfully block the subpoena in the trial court.

Werner declined to reconsider that decision, stating that the statute of limitations had expired for Schroeder to sue Doe, and that the published material consisted of opinions rather than fact.

The appeals panel agreed with Schroeder that her one-year window to sue did not start, as Doe argued, when he posted the reviews. Instead, it started when she discovered the reviews in 2019.

As to the question of whether Doe’s statements were constitutionally protected opinions that could not be challenged in a libel or defamation lawsuit, the court examined whether his posts were “sufficiently factual” that a reasonable person could think Doe was stating an authentic piece of information.

“We conclude that the reviews could be interpreted to contain at least one statement that is sufficiently factual to be susceptible of being proved true or false and that reasonable people could conclude is an assertion of fact – that the speaker was a patient of Dr. Schroeder,” wrote Judge Christina F. Gomez in the panel’s Nov. 4 opinion.

That determination came after the appellate judges struggled with the threshold Schroeder needed to cross for a viable defamation case during oral arguments.

“My concern is, if you go to a hotel and you have a terrible experience and you want to post 10 times on Expedia.com that you didn’t like the hotel,” wondered Judge Elizabeth L. Harris, “that’s defamation now?”

Murray Weiner, the lawyer representing Doe, warned there would be damage to his client’s First Amendment rights with the unmasking. Weiner said his client had an “awful and traumatic experience as Dr. Schroeder’s former patient,” and likened Doe’s actions to Colorado’s system of evaluating the performance of judges through anonymous lawyer surveys. Weiner asked whether judges similarly might be allowed to unmask people who gave them low ratings.

But, Gomez countered, “let’s say you fill that out 1,000 times as if you were 1,000 different lawyers. That’s the question here. Could you do it more than once? Could you do it a few times? Could you do it 1,000 times?” she asked.

Doe’s reviews labeled him as a “self-verified patient” of Schroeder’s. It was unclear whether Doe was actually one patient, several patients, whether Vitals.com automatically attached that label to reviews or, as Schroeder alleged, he could simply be a business competitor. Ultimately, the panel appeared to believe that the identity of Doe was relevant when evaluating the sheer number of negative posts.

A “series of dozens of reviews, if each purports to have been submitted by a different patient, may communicate an objective, potentially false fact: that the speakers are multiple separate patients who each had a negative patient experience with the provider,” Gomez explained in the opinion.

Ashley I. Kissinger, a First Amendment and media attorney with Ballard Spahr, agreed that even if the content of the negative reviews was opinion-based, John Doe’s representation of himself as a series of patients could support a defamation claim. She added that courts have developed various tests to determine when to reveal an anonymous person’s identity, such as when lawyers want to use the person as a witness.

The trial court, Kissinger said, might consider letting Doe remain anonymous until it is established that he was a patient of Schroeder’s. “That way if the anonymous speaker really is a patient, and the reviews are constitutionally protected statements of opinion (which they appear to be), their right to speak anonymously is thereby preserved,” Kissinger said.

The panel issued its decision in an unpublished opinion, meaning it is not intended to set precedent. The judges also did not lay out a clear pathway for evaluating whether to unmask a person who allegedly commits online defamation – or other circumstances in which a plaintiff seeks to lift the veil of anonymity.

One early unmasking case involved an insurance company that held the trademark of See’s Candy Shops, Inc. and sought the identity of the website domain owner who had registered seescandy.com. The company was attempting to locate and sue the owner for trademark infringement, and a federal judge in California decided the plaintiff had to show the steps it had taken to track down the domain owner, put forth sufficiently plausible legal claims and justify the information it was seeking to the court.

But Schroeder’s case and See’s Candy’s also illustrate the time and expense associated with such a legal claim – seeking out IP addresses, serving subpoenas and arguing appeals – that businesses harmed by anonymous reviewers may not be able to afford in general.

“I certainly wouldn’t want people to be unmasked unnecessarily, but the law of defamation is out there for a particular reason: to stop people from being defamed and harmed,” said Matthew Scott Martin of Martin Conti Law in Pueblo. “This is an area of law that doesn’t have a clear path of resolution and it needs to be decided eventually by the U.S. Supreme Court. So somebody’s got to get that ball rolling.”

The case is Schroeder et al. v. Doe.