I enjoyed talking with Anna Devlantes and Corey McPherrin this morning on our local Fox affiliate’s morning program about defamation online and the challenging problem of unmasking anonymous defendants. The video is embedded below, or you can go here if it’s not showing up in the RSS feed.
In re Anonymous Online Speakers, — F.3d —, 2010 WL 2721490 (9th Cir. July 12, 2010)
Quixtar (which used to be Amway) sued Signature Management TEAM (“TEAM”) for tortious interference and other claims, alleging that TEAM engaged in a smear campaign against Quixtar on the internet. In his deposition, TEAM’s online content manager refused to answer questions concerning the identity of the authors of certain statements made against Quixtar online. On Quixtar’s motion, the court ordered that the online content manager answer some of the questions concerning the anonymous speakers.
The anonymous speakers sought mandamus relief from the Ninth Circuit. On appeal, the court denied the request. It held that the district court’s decision was not “clearly erroneous as a matter of law.”
The district court had applied the stringent test set out in Doe v. Cahill, which requires, among other things, that the party seeking the identity of an anonymous internet speaker present enough facts to support a hypothetical motion for summary judgment.
The Ninth Circuit looked to the nature of the speech at issue — commercial speech — and held that the Cahill standard was too high. But the application of a too-high standard did not mean that the lower court should be reversed. The outcome would have been the same (i.e., the anonymous speakers would have been ordered unmasked) even if the district court had correctly applied a lower standard appropriate for commercial speech.
This is a significant case on the topic of anonymity because it is only the third federal circuit opinion to consider the question as to when unknown online speakers should be identified. The others are NLRB v. Midland Daily News (6th Cir. 1998) and Lefkoe v. Jos. A. Bank Clothiers, (4th Cir. 2009).
Maxon v. Ottawa Pub. Co., — N.E.2d —, 2010 WL 2245065 (Ill.App. 3 Dist. June 1, 2010)
The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.
A couple from Ottawa, Illinois got their feelings hurt over some anonymous comments left in response to content published by the local newspaper on its website. Wanting to sue for defamation, the couple filed a Rule 224 petition. The newspaper opposed the petition. (For something similar, see Enterline v. Pocono Medical Center.)
The trial court denied the petition, applying the standards articulated in Dendrite v. Doe and Doe v. Cahill, finding that the petitioners had not presented a strong enough case for defamation to justify the unmasking of the anonymous commenters. Those cases require, among other things, that a party seeking to identify an anonymous speaker make efforts to notify the anonymous party, and present enough evidence to establish a prima facie case of defamation (Dendrite) or survive a hypothetical motion for summary judgment (Cahill).
The aggrieved couple sought review with the Appellate Court of Illinois. Reviewing the decision to deny the Rule 224 petition de novo, the court reversed and remanded, ordering the identification of the anonymous speakers to be made.
In reaching its decision, the court rejected the newspaper’s (and amicis’) arguments that the trial court should apply the rigorous standards of Dendrite and Cahill. That’s not to say, however, that the court left anonymous speakers at great risk of having their First Amendment rights trampled upon.
The court held that the mechanics of Rule 224 adequately protect the potential First Amendment rights of anonymous internet speakers. Here’s why, according to the court:
- The petition must be verified – the threat of the pain of perjury should keep out half-hearted claims.
- The petition must state the reason discovery is necessary.
- The discovery is limited only to learning the identity of the potential defendant.
- Most importantly, before the discovery will be permitted, the court must hold a hearing and determine the petition sufficiently states a cause of action.
In this fourth step, the court is to apply the standard it would apply in a Section 2-615 motion. Such a motion is, essentially, the Illinois version of a motion to dismiss for failure to state a claim. That is no insignificant test, because unlike federal court and other state jurisdictions, Illinois requires fact pleading. That means the petition needs to include a significant amount of specific information to survive the motion to dismiss.
A troubling aspect of the ruling is the omission from the test of a requirement that the party seeking discovery attempt to notify the anonymous target of the inquisition. The appellate court held that a trial court may, in its discretion, impose such a requirement.
But it would be nice to know that the real party whose First Amendment interests are at stake (the anonymous speaker) is guaranteed a fair opportunity to argue from his or her perspective. After all, it’s that party with the real incentive to do so. Let’s hope the trial courts exercise that discretion wisely (and that they know in the first place that they have that discretion).
Zynga Game Network Inc. v. Williams, 2010 WL 2077191 (N.D.Cal. May 20, 2010)
Zynga (you know, the creator of Farmville and Mafia Wars) has filed a federal lawsuit against the operators of websites that sell virtual currency and goods for use in Mafia Wars. These websites allegedly give rise to infringement of the Mafia Wars trademark and the sale of these virtual things is in violation of the game’s terms of service.
In federal court, you can’t start the discovery process until the parties have met to discuss certain issues (this is called a Rule 26(f) conference). But there’s an obvious chicken and egg problem in cases like this that have anonymous defendants — how do you confer with a defendant you don’t know? You’re kind of stuck if you can’t take discovery to learn who he is.
Fortunately the court can allow discovery to happen before the Rule 26(f) conference when there is good cause.
So Zynga has argued that there is good cause to allow it to serve subpoenas on Godaddy (the registrant for the MAFIAWARSDIRECT.COM, MWBLACKMARKET.COM, and MWFEXPRESS.COM domain names) and PayPal, who apparently facilitated the purchase of virtual goods.
The court agreed that Zynga should get to serve the subpoenas. But it found that the subpoenas as proposed were too broad. For example, Zynga sought all billing and account records, server logs, website content, contact information, transaction histories and correspondence for the persons or entities that purchased services from the offending sites. The court held that the limited discovery appropriate for Zynga at the early stage would only allow it to get identifying information for the site owners.
Worldwide Film Entertainment, LLC v. Does 1-749, 2010 WL 2011306 (D.D.C. May 20, 2009)
Some have already commented on their scruples arising from the large economies of scale approach to copyright litigation that’s being undertaken by lawyers with the U.S. Copyright Group to go after Bittorrent movie sharers. See, for example, what Mike Masnick and Eriq Gardner have had to say. And the ISPs aren’t all that happy about the work required to respond to a bunch of subpoenas.
So no one should be surprised if some interesting little internet law vignettes play out along the way. One of those vignettes is wrapping up in federal court in Washington D.C. It has to do with anonymity.
Worldwide Film Entertainment has sued over 700 anonymous Bittorrent users over the 2007 film The Gray Man. As with any case of this sort (like the numerous RIAA lawsuits), the plaintiff doesn’t know the identity of the various defendants when the lawsuit starts. All it has is an IP address for each alleged infringement, so it has to go to the ISP to link that IP address with an individual’s name and physical address. Then the plaintiff will know who to list as a defendant.
But most ISPs won’t turn over subscriber information without a subpoena. So Worldwide Film Entertainment had a subpoena issue to Comcast, the ISP for the IP address associated with one of the alleged infringements. Under the Cable Communications Policy Act of 1984 (at 47 USC 551), providers like Comcast have to notify their subscriber before turning over the subscriber’s information.
Comcast notified its subscriber in this case, one Mr. Simko, of Worldwide Film Entertainment’s efforts to learn Mr. Simko’s identity.
And here’s the part that makes this little vignette so charming: rather than challenge the plaintiff’s efforts to unmask his identity, Mr. Simko filed a motion to quash the subpoena USING HIS REAL NAME.
The court denied the motion to quash. The basis for denying the motion is kind of an aside (the motion to quash phase was not the right time to challenge venue or knowledge of the infringement).
What’s noteworthy about the case is Mr. Simko’s decision to voluntarily waive his anonymity. Not only did he challenge the subpoena using his own name, he filed as an exhibit the letter he got from Comcast notifying him of the subpoena. Right there, in all caps and as plain as day were Simko’s name and address for all to see.
Photo courtesy Flickr user pourmecoffee.
20/20 Financial Consulting, Inc. v. Does 1-5, 2010 WL 1904530 (D.Colo. May 11, 2010) [Opinion embedded below.]
A financial consulting company has filed a lawsuit in federal court in Colorado alleging that certain anonymous web users have posted defamatory statements about the plaintiff on blogs and in message forums. The plaintiff asked the court for an order permitting it to serve subpoenas (apparently to the host and/or the ISP) to uncover the identity of the anonymous bloggers.
With essentially no analysis of the rights of the “John Doe” defendants, the court ordered that the discovery be permitted. This ruling is troubling for a couple of reasons.
There’s an important potential First Amendment issue here over which the court appears to have run roughshod. Each one of us has the constitutional right to speak anonymously. And courts need to be careful not to breach that right when asked to order that anonymous speakers be identified. Responsible courts give this constitutional interest the appropriate treatment by requiring that a certain showing by the plaintiff be made before the unmasking is permitted. See this page for a whole host of court opinions addressing that balancing test.
If the court went through that analysis in this case, it sure does not show up in the opinion.
One big troubling aspect is that the court compared the present situation to one in an earlier copyright infringement case brought by the RIAA. That comparison is not quite valid. In copyright cases, unlike defamation cases, the nature of what the plaintiff pleads is necessarily different — you have to plead a valid copyright registration as half of your prima facie case of copyright infringement. That means you already have the Copyright Office’s stamp of approval, so to speak, that the rights you are asserting are valid. In defamation cases there’s nothing equivalent to a copyright registration certificate. The plaintiff just says the offending statements are defamatory, and that has to be proven later. Simply stated, a claim for copyright infringement, properly pled, will be stronger, and will tend to suggest more clearly, that something actionable has occurred, than will mere assertions of defamation.
Apart from cursorily comparing this case to an unmasking in a copyright infringement case, the court does not mention the potential First Amendment concern of the anonymous defendants, nor does it mention the strength of the plaintiff’s allegations of defamation. The court simply says, “[b]ecause it appears likely that Plaintiff will continue to be thwarted in its attempts to identify Defendants without the benefit of formal discovery mechanisms, the court finds that Plaintiff should be permitted to conduct expedited discovery.” Such a reasoning would suggest anyone sued as a John Doe for defamation should be unmasked pretty much as a matter of course. That’s dangerous.
A.Z. v. Doe, 2010 WL 816647 (N.J. Super. App. Div. March 8, 2010)
Even if you do just a cursory review of cases that deal with online anonymity, you are bound to come across a 2001 New Jersey case called Dendrite v. Doe. That case sets out a four part analysis a court should undertake when a defamation plaintiff seeks an order to unmask an Internet user who posted the offending content anonymously.
Under Dendrite, a court that is asked by a defamation plaintiff to unmask an anonymous speaker must:
- require the plaintiff to try to notify the unknown Doe speaker that he or she is the subject the unmasking efforts, and give him or her a reasonable opportunity to oppose the application;
- require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech;
- require the plaintiff to produce sufficient evidence supporting each element of its cause of action, on a prima facie basis; and
- 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.
The state appellate court in New Jersey recently had occasion to revisit the Dendrite analysis in a case called A.Z. v. Doe. It found that a defamation plaintiff was not entitled to learn the identity of a person who anonymously sent an email that had content and attached photos that allegedly defamed plaintiff. The court found that plaintiff failed to meet the third factor in the Dendrite analysis, i.e., failed to present a prima facie case of defamation.
Beer pong is not for honor students
Someone took pictures of plaintiff playing beer pong at a party and posted them on Facebook. That’s all in good fun, except that plaintiff was a minor and belonged to her high school’s “Cool Kids & Heroes” program. Kids get into that program by making good grades and promising to refrain from bad behavior.
A purported “concerned parent” set up a Gmail account (anonymously) and sent an email to the faculty advisor for the Cool Kids & Heroes program. The email had photos attached showing several of the program’s kids doing things they shouldn’t be doing like drinking and smoking pot. In all fairness it should be noted that the picture of plaintiff only showed her playing beer pong — it didn’t actually show her drinking or smoking, though there were cups and beer cans on the table in front of her.
The faculty advisor forwarded the email and images on to school administrators, and the school also notified the police. But law enforcement apparently took no further action.
Plaintiff filed a defamation lawsuit against the anonymous sender of the email and sent a subpoena to Google to find out the IP address from which the message was sent. Google notified plaintiff that it came from an Optimum Online IP address. So plaintiff sent a subpoena to Optimum Online for the identifying information. The ISP notified its customer Doe, and Doe moved to quash the subpoena.
The trial court granted the motion to quash, concluding that plaintiff failed to meet the fourth Dendrite factor (dealing with the First Amendment). Plaintiff sought review with the appellate court, which affirmed but on different grounds.
Why the defamation claim failed
The appellate court agreed that the motion to quash should be granted (that is, that the anonymous sender of the email message should not be identified). But the appellate court’s reasoning differed. It didn’t even need to get to the fourth Dendrite factor, because it held that plaintiff didn’t meet the third factor (didn’t present a prima facie defamation case).
The big problem with plaintiff’s defamation claim came from the requirement that the statement alleged to be defamatory (in this case, that plaintiff had broken the law) needed to be “false.” The court found five reasons why this element had not been met:
- Plaintiff submitted no evidence (like an affidavit) that she wasn’t drinking the night the photo was taken.
- Plaintiff submitted no evidence that law enforcement actually concluded to take no further action. Plaintiff argued their lack of action showed she didn’t break the law.
- Even if there was evidence that law enforcement decided to take no action, that would not have been relevant to the truth of the question of whether plaintiff was drinking. That would only go to show that law enforcement decided not to do anything.
- The photograph attached to the email showing plaintiff playing beer pong would lead one to conclude that she was in “possession” of the alcohol on the table, and that was a violation of the law.
- Doe submitted other photos from Facebook in connection with the motion to quash which showed plaintiff actually holding a beer.
So the court never got to the question of the First Amendment and how it related to the anonymous email sender’s right to speak. The court concluded that because plaintiff had not put forth a prima facie case of defamation, the anonymous speaker should stay unknown.
Advance Magazine Publishers v. Does 1-5, No. 09-10257 (S.D.N.Y. Dec. 22, 2009)
Someone accessing the Internet using an AT&T IP address hacked into Conde Nast’s computer system and acquired and published copies of editorial content and the images that were to be in the December 2009 issue of GQ. Those images were later published anonymously on a blog hosted by Google’s Blogger service.
Conde Nast sued in federal court alleging copyright infringement (for the posting of the content) and violation of the Computer Fraud and Abuse Act (for the unauthorized accessing of the Conde Nast servers). Since the identity of the person or persons committing these acts was not known, Conde Nast sued “John Does 1 through 5”. It then filed a motion with the court for permission to serve subpoenas on AT&T and Google to get information with which to give the defendants a name.
The court granted the motion and authorized the subpoenas.
Rule 26(d) requires that a party demonstrate good cause before expedited discovery will be permitted. In this case, Conde Nast gave four reasons supporting good cause:
- It had sufficiently pled causes of action under the Copyright Act and the Computer Fraud and Abuse Act
- AT&T’s server activity logs and Google’s registration data were at risk of being overwritten or purged
- The scope of the information requested was appropriate — the only items being requested were those sufficient to name the defendants
- Without the identifying information, the case would be at a standstill and Conde Nast might be left without a remedy
Independent Newspapers, Inc. v. Brodie, — A.2d —, 2009 WL 484956 (Md. February 27, 2009)
Maryland’s highest state court has issued a comprehensive opinion setting out the proper framework trial courts should use when evaluating whether a plaintiff should be permitted to learn the identity of an anonymous (or pseudonymous) internet speaker. After considering the varying standards courts across the country have applied in balancing the First Amendment right to anonymity against the right of a plaintiff to seek redress, the court adopted, in large part, the standard put forth in the New Jersey case of Dendrite, Int’l. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) which requires, among other things, a prima facie showing by the plaintiff before compulsory discovery concerning the identity of an unknown defendant will be had.
One of the great things about the internet is that users can easily speak anonymously or through a pseudonym. This right to remain unidentified is a free speech right guaranteed by the First Amendment. But that right has limits which start to show when an anonymous speaker goes too far by venturing from the realm of protected speech into that of unprotected defamation.
An aggrieved party going after an unknown defamer must first figure out who the defendant is. This usually involves a subpoena to the operator of the service through which the offending content was transmitted, to the unknown John Doe’s internet service provider, or both. This use of compulsory judicial process to reveal the identity of an unknown speaker pits the speaker’s First Amendment right to anonymity against the defamation plaintiff’s right to seek redress for the tort that has been committed.
It is up to the courts to weigh the competing interests so that:
- a defendant’s First Amendment right to anonymity is not violated by wrongful compelled disclosure in connection with an unmeritorious case; while
- aggrieved subjects of harmful defamatory speech are not deprived of the remedies due to them in a civil society.
This weighing of competing interests illustrates why the scale is a good metaphor for justice.
The Brodie case
Plaintiff Brodie learned that certain participants in an online forum board were saying negative things about him. Three users identified as “CorsicaRiver,” “Born & Raised Here” and “chatdusoleil” engaged in an online public conversation about Brodie’s sale of an historic farmhouse. Two other users, who went by the monikers “RockyRaccoonMD” and “Suze” criticized the way Brodie ran the local Dunkin Donuts shop.
Brodie sued Independent Newspapers (the operator of the forum) and John Does CorsicaRiver, Born & Raised Here and chatdusoleil for defamation. Absent from the list of defendants were RockyRaccoonMD and Suze.
Independent Newspapers moved to dismiss, arguing, among other things, that it was immune from suit under 47 U.S.C. §230. It also moved to quash the subpoena Brodie had served, which sought the identities of CorsicaRiver, Born & Raised Here and chatdusoleil. The court dismissed Independent Newspapers from the case, but ordered it to identify those three pseudonymous posters.
Immediately thereafter, Independent Newspapers asked the court to reconsider its order directing that the pseudonymous speakers be identified. The court granted that motion and dismissed the portion of the case dealing with the discussion of the historic farmhouse. The claims relating to the Dunkin Donuts stayed in, and the court required Independent Newspapers to disclose information concerning that.
Notwithstanding the fact that the farmhouse defamation claims had been tossed, Brodie sent a subpoena to Independent Newspapers seeking the identity of CorsicaRiver, Born & Raised Here, chatdusoleil, RockyRaccoonMD and Suze. Brodie also conceded that the only posters responsible for discussions about the Dunkin Donuts were RockyRaccoonMD and Suze. Independent Newspapers filed another motion to quash this subpoena which the court denied.
The Maryland Court of Appeals granted certiorari to hear the case. (Here’s some trivia for you: in Maryland, the Court of Appeals is the highest court. For some reason they don’t call it the Supreme Court.) On review, the court reversed the denial of the motion to quash. It held that Brodie did not have a sufficient claim of defamation against any of the pseudonymous speakers to justify revealing their actual identities.
Which standard applied
The court gave thorough and comprehensive analysis on the question of when it is appropriate for a trial court to order that an unknown defendant be unmasked. It recognized the important interests that must be balanced, and observed that courts have applied various standards regarding what a plaintiff must show before discovery of an unknown speaker will be permitted.
For example, the Delaware Supreme Court in Doe v. Cahill put forth a rigorous requirement that in addition to providing notice of the discovery being sought, a plaintiff must come forward — at the pleading stage — with facts sufficient to survive a motion for summary judgment. Other courts, such as the U.S. District Court for the Northern District of California, have set the threshold lower. In Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), the plaintiff was only required to plead facts sufficient to survive a motion to dismiss.
The New Jersey appellate court in Dendrite, Int’l. v. Doe took a more moderate approach. That court held that a plaintiff seeking the identification of an anonymous internet speaker must establish facts sufficient to maintain a prima facie case.
The Maryland court in the present case joined in the more moderate Dendrite approach, holding that when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should:
- 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, including posting a message of notification of the identity discovery request on the message board;
- withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application;
- require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
- determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and
- if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.
The Independent Newspapers case is an important case not necessarily because of any groundbreaking jurisprudence that it establishes, but because of the comprehensive way it treats the issue of unmasking unknown internet speakers. The opinion is a nearly exhaustive look at the current state of this question of law.