Solers, Inc. v. Doe & In re Liskula Cohen: Hurdles to Uncovering the Identity of an Anonymous Internet Poster Vary Greatly throughout the U.S.
There are many hurdles to recovering damages when a third party makes a defamatory post about you or your business on an interactive website. The Communications Decency Act generally shields the site that published the third-party post itself, which means that you will have to sue the original author. If the poster was anonymous, you will have discover his identity before your suit can get off the ground. While some web hosts will disclose the identity of an anonymous poster in response to a simple request or a subpoena, others will not do so without a court order.
A court order is often not easy to get.
Anonymous speech has played a critical role in furthering the American democracy. Thomas Paine was able to publish his Common Sense which urged Americans to revolution, without fear of personal reprisal, because he was able to publish it anonymously. The Federalist Papers were also published anonymously. Given this heritage, the U.S. Supreme Court has repeatedly found that the right to speak anonymously is protected by the First Amendment. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42 (1995).
The amount of First Amendment protection offered to anonymous speech, like all other protected speech, varies with the class of speech involved. For example, where disclosure of a speaker's identity would chill his ability to exercise his political rights, the U.S. Supreme Court has absolutely refused to permit disclosure of his identity. NAACP v. Alabama, 357 U.S. 449, 462; 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958); Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960). On the other hand, the Court has found that defamatory and libelous speech gets no Constitutional protection. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).
While courts permit disclosure of an alleged defamer's identity, a court faced with a complaint that accuses an anonymous speaker of engaging in defamation faces a "chicken and the egg" dilemma. If trial proves that the speaker is liable for defamation, then his anonymity was not entitled to First Amendment protection and should be disclosed. If trial proves that the speaker is not liable for defamation, then his anonymity was entitled to First Amendment and should not be disclosed. However, disclosure of a speaker's identity is generally required for a court to determine whether his words were defamatory. In other words, you have to disclose his identity to determine whether his identity should be disclosed.
For example, proving a cause of action for defamation often requires showing that the speaker acted with malice. To show malice, a plaintiff must have evidence that the speaker made his defamatory statements intending or knowing that they would cause harm to the plaintiff, or that he made his statements without a reasonable basis for believing that they were true. Such evidence of a defendant's mental state can generally only be provided to a court after the speaker has been identified and discovery of his purposes and of the facts available to him at the time he spoke has been obtained.
While all courts recognize the tension between a speaker's potential right to anonymity and a plaintiff's right to defend its reputation, the standards they impose to deal with this dilemma vary widely. On the lighter end of the scale, some courts have merely required that plaintiff show that he has a good faith basis to contend that he may be the victim of actionable conduct. In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 at *8 (Va. Cir. 2000).
On the heavier end of the scale, other courts have required plaintiff to "support his defamation claim with facts sufficient to defeat a summary judgment motion." Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005). Some courts have also imposed additional procedural requirements, such as, (i) requiring the plaintiff to make an effort to notify the anonymous poster that he is the subject of a subpoena and withholding action until the poster has had a reasonable opportunity to file an opposition, (ii) posting a message regarding the identity discovery request on the ISP or webhost's message board, and (iii) showing that information sought is directly relevant to the plaintiff's claims and unavailable from any other source. See Dendrite Int'l v. Doe No. 3, 755 A.2d 756 (N.J. App. 2001), Doe v. 2The Mart.com, Inc., 140 F.Supp.2d 1088 (W.D. Wash. 2001).
Such heavier standards have been criticized as creating burdens that are impossible for plaintiffs to meet. How is a plaintiff supposed to present evidence sufficient to withstand a summary judgment motion on the speaker's malicious state of mind without knowing who the speaker is? Moreover, wouldn't the requirement to post a notice seeking the anonymous speaker's identity merely serve the purpose of inflaming public passions against the plaintiff and making the anonymous speaker even more reticent to reveal his identity? See Ian C. Ballon, E-Commerce & Internet Law, 2nd ed. (2009) ยง 37.02[2][B].
In response to such criticisms, a number of courts have adopted more moderate positions -- as exemplified in this month's Solers' and Cohen decisions.
On August 13, 2009, in Solers, Inc. v. Doe (Case No. 07-CV-159), the District of Columbia Court of Appeals imposed a moderated version of the "heavy" standard in a defamation case involving an anonymous tipster. The plaintiff in the case, Solers, Inc., develops software and other technology for the Department of Defense. The appellant, Software & Information Industry Association (SIIA), is a trade organization for the software industry, whose mission includes combating software piracy.
In 2002, SIIA received an anonymous tip via the Internet that Solers was using unlicensed software. SIIA then wrote a letter to Solers, accusing it of copyright infringement and threatening to sue. However, after an initial exchange of information between the parties, SIIA decided not to prosecute. Soler's claimed that this was because no infringement had occurred. SIIA stated that it decided not to prosecute to protect the identity of its anonymous informant.
Solers then filed a "John Doe" defamation and tortuous interference with prospective business advantage suit against SIIA's anonymous informant, and served SIIA with a subpoena seeking disclosure of documents that would identify the informant.
On review of the trial court's grant of SIIA's motion to quash the subpoena, the D.C. Court of Appeals held that in considering such a motion, "the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit."
This test deals with some of the criticisms leveled against the heavier standards on plaintiffs that have been imposed by some courts. Instead of requiring a plaintiff to provide evidence for all elements of a defamation claim -- an impossibility in many cases -- this standard only requires a plaintiff to provide evidence for "all elements not dependant upon knowing the identity of the anonymous speaker." For example, because the tipster did not post his statements on a bulletin board or blog for all the world to see, Solers did not even know the exact statements he made. So, the Court of Appeal suggested that the trial court require SIIA to disclose these statements, so that determination could be made as to whether the "false and defamatory statement" element of a defamation cause of action could be met, before requiring disclosure of the speaker's identity.
The Court of Appeal then remanded the Solers case to the trial court to apply these new standards.
On August 17, in the case In re Cohen, a New York trial court applied a "light" standard to an order seeking discovery of the identity of an anonymous blogger. (In re Liskula Cohen, Supreme Court of the State of New York, County of New York: Part 11, Index No. 100012/09). The plaintiff, Liskula Cohen, alleged that in 2008, five weblogs entitled "Skanks of NYC" were posted on Google's Blogger.Com, that included photos and captions that were unflattering to her. These included statements calling her a "skank," "skanky," "ho" and "whoring." Cohen sought disclosure of the identity of the blogger from Google so that she could commence a defamation suit against the blogger.
Ms. Cohen's litigation hill appears to be less steep than Solers'. First, as the trial court found, the anonymous blogger's statements fit into a special category of defamation law called defamation per se, because the statements on their face impune her chastity. In defamation per se cases, a plaintiff does not have to prove that the defamatory statements caused damages. Second, unlike the tipster in Solers, who might be entitled to a privilege such as the common interest privilege, it seems unlikely that the anonymous blogger's statements would entitled to any privilege.
The anonymous blogger, who appeared via counsel, argued that the court should require Cohen to meet a heavy burden for disclosure of anonymous speakers such as that imposed by New Jersey courts and require Cohen to produce evidence sufficient to withstand a motion for summary judgment on each element of its claim. The court rejected this approach, and instead applied New York law which merely requires a "prima facie showing of a meritorious cause of action." This appears to mean that plaintiff is merely required to plead facts in its complaint that are sufficient to survive a motion to dismiss -- not to provide evidence in support of those claims. The plaintiff must also show that "the information sought is material and necessary to the actionable wrong."
The court rejected that blogger's argument that no one takes statements made on the Internet seriously. Rather, the court analyzed the blogger's statements under traditional defamation law principles and found that the blogger's use of the words "skank," "skanky," "ho" and "whoring" about Cohen were actionable, because they were not mere statements of opinion and, with their negative implications of sexual promiscuity, could have a defamatory connotation. Having found that the plaintiff met the light standards for disclosure of the identity of an anonymous defamer, it ordered Google and Blogger.Com to provide the plaintiff with the blogger's identity.
Suing for defamation has its challenges. As seen here, success may depend on finding the right venue for the suit.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
