Texas supreme court says identities of anonymous bloggers should not be disclosed

In re Does, — S.W.3d —, 2011 WL 1447544 (Texas, April 15, 2011)

The issue of anonymity is a hot topic in internet law. The question of whether an internet user known only by an IP address or username or website name should be identified arises fairly often in the early stages of internet defamation and certain copyright infringement cases. For example, the issue is a big one in the numerous copyright cases that have been brought recently against BitTorrent users who get subpoenas after being accused of trading copyrighted works online.

The supreme court of Texas has issued an opinion that protects the anonymity of a couple of bloggers who were accused of defamation, copyright infringement and invasion of privacy by another blogger. The court ordered that a subpoena served on Google (who hosted the Blogger accounts in question) be quashed.

Texas rules of procedure (Rule 202) allow a petitioner to take depositions before a lawsuit is filed in order to investigate a potential claim. The petitioner in this case filed such an action, and Google agreed to turn over the information about the anonymous Blogger users.

But the anonymous bloggers objected, and moved to quash the deposition subpoena, arguing that the findings required for the discovery to be taken had not been made.

The trial court was required to find that:

(1) allowing the petitioner to take the requested depositions may prevent a failure or delay of justice in an anticipated suit; or

(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.

Neither of these findings were made. Petitioner had tried to argue that the findings were not necessary because he had gotten the agreement of Google to turn over the information.

But the court saw how that missed the point. It held that without the required findings, the discovery could not be taken in the face of objections brought by other interested parties (the parties whose identities were at risk of being revealed).

While many courts have evaluated this kind of question using a first amendment analysis (i.e., is the John Doe’s interest in speaking anonymously outweighed by the plaintiff’s right to seek redress), the court in this case looked to more general concerns of avoiding litigation abuse. Citing to a law review article by Professor Hoffman, the court observed that there is “cause for concern about insufficient judicial attention to petitions to take presuit discovery” and that “judges should maintain an active oversight role to ensure that [such discovery is] not misused”.

Facebook user had standing to challenge subpoena seeking his profile information

Mancuso v. Florida Metropolitan University, Inc., 2011 WL 310726 (S.D. Fla. January 28, 2011 )

Plaintiff sued his former employer seeking back overtime wages. In preparing its defense of the case, the employer sent supboenas to Facebook and Myspace seeking information about plaintiff’s use of those platforms. (The employer probably wanted to subtract the amount of time plaintiff spent messing around online from his claim of back pay.) Plaintiff moved to quash the subpoenas, claiming that his accounts contained confidential and privileged information. The court denied the motion as to these social networking accounts, but did so kind of on a technicality. The subpoenas were issued out of federal district courts in California, and since this court (in Florida) did not have jurisdiction over the issuance of those subpoenas, it had to deny the motion to quash.

But there was some interesting discussion that took place in getting to this analysis that is worth noting. Generally, a party does not have standing to challenge a subpoena served on a non-party, unless that party has a personal right or privilege with respect to the subject matter of the materials subpoenaed. The employer argued that plaintiff did not have standing to challenge the subpoenas in the first place.

The court disagreed, looking to the case of Crispin v. Christian Audiger, Inc. 717 F.Supp.2d 965 (C.D. Cal. 2010), in which that court explained:

[A]n individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and banking records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information.

This almost sounds like an individual has a privacy right in his or her social media information. But the p-word is absent from this analysis. So from this case we know there is a right to challenge subpoenas directed at intermediaries with information. We’re just not given much to go on as to why such a subpoena should be quashed.

Facebook account protected from disclosure in discovery, for now

McCann v. Harleysville Insurance, — N.Y.S.2d —, 2010 WL 4540599 (November 12, 2010)

Unlike some recent cases such as Romano v. Steelcase, which seem to give the impression that the information in a person’s social networking account is always fair game for discovery in litigation, one New York court has come down on the side of protecting the privacy of a Facebook user’s content.

Plaintiff was injured in an automobile accident and filed a lawsuit over her injuries. In the course of discovery, defendant sought photographs from plaintiff’s Facebook account and “an authorization” to access the account. Defendant claimed the sought-after discovery related to whether plaintiff sustained a serious injury.

After plaintiff did not respond to the discovery requests, defendant moved to compel. The trial court denied the motion, finding the discovery to be overly broad, and finding that defendant had failed to show the relevancy of the information to be discovered. Defendant sought review with the appellate court. On appeal, the court affirmed.

The court held that the discovery sought was too broad and that defendant had failed to show the relevancy of the information. It affirmed the denial of the motion as to avoid a “fishing expedition.”

But the holding is anything but reassuring from the plaintiff’s perspective. It affirmed the denial without prejudice to serving additional discovery requests. So it sounds as if defendant tailors its discovery a bit more closely, and shows how accessing plaintiff’s Facebook account will provide relevant evidence, it may see some success.

Ninth Circuit orders anonymous internet speakers be identified

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).

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