Swartz v. Doe: Tennessee Ruling Provides Clarity on Showing Needed to Uncover Identity of Anonymous Blogger in Defamation/Privacy Case
A Tennessee trial court adopted a version of the "heavy" Dendrite standard for permitting discovery of the identity of the anonymous poster of an allegedly defamatory blog. However, as interpreted by the trial court, this standard was not insuperable, and resulted in an order that the plaintiffs were entitled to discovery of the identity and personal information of the blogger.
The plaintiffs in the case (Swartz v. Doe, Sixth Circuit Court for Davidson County, Tenn., No. 08C-431), Donald and Terry Swartz, are residents of Old Hickory, Tennessee, and are involved in widely varied businesses, including rehabilitation and sale of real estate and operation of recovery facilities for substance abusers. (It seems likely that the businesses are related. Perhaps the Swartzs convert the buildings they rehabilitate into recovery centers)
The main defendant in the case, John Doe #1, is the author of a blog entitled "Stop Schwartz", located a http://stopschwartz.blogspot.com. The blog allegedly accused the Swartzs of arson, improper management of rehabilitation facilities, exploitation of recovering substance abusers, inferior construction work, etc. Perhaps Doe #1 is a neighbor of some of the Swartz properties and doesn't like addicts being moved into buildings on his block. (Note: the blog was still up as of October 30, 2009, but the allegedly offensive posts had long been removed and no entries had been posted for several months).
The Swartzs filed suit in 2008 against Doe #1. They then issued subpoenas to Google seeking to discover his name and address. Google sent a notice to the blogger stating that it would comply with the subpoena unless he filed a motion to quash the subpoena within 3 weeks. Doe #1 then hired a lawyer who filed the motion to quash. A year later, Judge Thomas Brothers of Davidson County issued his final ruling on this motion to quash, as well as on a related motion to dismiss.
Judge Brothers began by noting the important role that anonymous speech has had throughout history. However, he stated that "internet anonymous speech is not entitled to absolute protection." Rather, "the free speech interest of the Defendant must be balanced with the reputation and privacy interests of the Plaintiffs."
He then reviewed the variety of standards applied by courts today for revealing the identity of anonymous bloggers. Finding that "a growing number of courts have begun to follow the standard" in Dendrite International, Inc. v. John Doe, 775 A.2d 456, 760-61 (N.J. Super. Ct. App. Div. 2001), Judge Brothers stated his intention to follow this test. Under the Dendrite test, a plaintiff must: (i) attempt to notify the anonymous blogger that he is the subject of a discovery procedure, (ii) give the blogger a reasonable time to oppose this discovery, (iii) identify the exact statements by the blogger that give rise to his claim, (iv) make a prima facia or substantial showing for each element of each cause of action, and (v) if the plaintiff establishes these elements, the court must the balance the First Amendment interests of the defendant against the strength of the plaintiff's case and the plaintiff's need for the disclosure to proceed on his claims.
While these tests sound difficult, as applied by Judge Brothers, they were very achievable.
Adequate notice: The Court found that the plaintiffs had provided adequate notice, because they had served their subpoena to Google, Google had given notice of the subpoena to Doe #1, and Doe #1 had in fact filed a motion to quash.
Time to respond: Because the plaintiffs had taken no further action against Doe #1 for several months after Doe #1 filed his motion to quash, the Court found that the Defendant was given ample time to respond.
Stating claims with specificity: The plaintiffs had identified the specific statements that they alleged were defamatory in their complaint, so this was sufficient.
Substantial showing of proof: Here, Judge Brothers stated that the plaintiffs needed to provide evidence that: (1) the defendant published a statement, (2) with knowledge that the statement was false and defaming to the plaintiff or (3) with reckless disregard for its truth. Ub theory, this requirement is impossible: how were the plaintiffs supposed to provide evidence that the defendant knew that his statements were false when he made them without knowing who the defendant was?
In practice, Judge Brothers actually permitted the plaintiffs to make a substantially lesser showing: To prove the first element, the plaintiffs submitted copies of the allegedly defamatory blog posts and testified that they were available on- line for several months. To prove the second element, the plaintiffs did not present evidence of the defendant's state of mind, but merely provided an affidavit stating that the defamatory statements in the blog were false -- certainly a much easier thing to do. The plaintiffs also provided testimony that these statements had damaged them.
Judge Brothers held that this was enough.
So, as applied by Judge Brothers, there really are only two substantive requirements to unmask the identity of an anonymous blogger: make a serious attempt is made to serve the blogger with notice of the subpoena to uncover his identity and give him sufficient time to respond; and plead the defamatory statements made by the blogger with specificity. The requirement of an affidavit supporting the claims in the complaint does not pose a true additional requirement, because allegations in a complaint are supposed to be true and have a basis in fact, anyway.
Balancing the rights of the parties: The final part of the Dendrite test requires the court to balance the plaintiffs' need to learn the identity of the defendant to pursue their claims, whether they could discover his identity via alternate means and the extent and reasonableness of the defendant's privacy expectations. Here, Judge Brothers found that the plaintiffs did need to know the defendant's identity to pursue their claims and that they had no other means to learn it other than their subpoena to Google.
The judge also found that the blogger had some expectation of privacy, since he had published his statements anonymously. However, he also had been informed, in Google's Terms of Service, that Google would turn over his identity in response to legal process.
Ultimately, the Court ordered that the subpoena be honored. However, recognizing that this was a matter of first impression, the judge also granted Doe #1's request for an interlocutory appeal. I presume that this means that the judge's order denying the motion to quash the subpoena will be stayed pending resolution of the appeal.
Conclusion: The test actually applied by Judge Brothers seems reasonable. It provides appropriate protections for anonymous bloggers against harassing suits that can't make it past the pleading stage. It makes sure that reasonable attempts are made to locate an anonymous blogger that he is given a reasonable chance to respond to the suit. It provides a final reasonableness check by the judge to make sure the discovery is truly needed and won't unduly harm the defendant. Perhaps this does provide a basis for a true consensus.
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.
