In Fodor v. Doe, 2011 WL 1629573 (D. Nev. Apr. 27, 2011), a federal magistrate judge in the District of Nevada adopted a two-part, "prima facie" test for determining whether to authorize third-party discovery seeking the identity of an anonymous online speaker. Under this test, before authorizing the third-party discovery, the court must determine that (1) the plaintiff has a real evidentiary basis to believe the anonymous defendant had engaged in the conduct complained of and (2) the plaintiff's need to identify the speaker and proceed with his case justifies the extent of the harm to the anonymous speaker's First Amendment rights and privacy. Applying the test in this case, the court authorized the plaintiff to serve limited third-party discovery to try to identify "Tazmanian," the anonymous author of an allegedly defamatory blog post on Blogspot.com.
Facts and Procedural Background
In December 2008, an online user known as "Tazmanian" posted a blog post claiming that the plaintiff, Tim Fodor, was cooperating with an alleged criminal to perpetrate fraud related to oil exploration projects. Fodor alleged that the author of the post was liable for gross negligence, defamation per se, intentional interference with prospective advantage, and also sought preliminary and injunctive relief. Because the post was written anonymously, however, Fodor needed to first try to identify the author. When attempts to confirm the author's identity by approaching the person suspected of being the author failed, Fodor sought leave of court to conduct third-party discovery from a range of internet and online service providers that Fodor believed maintained identifying information for "Tazmanian."
The "Prima Facie" Standard
The judge started her analysis by citing Ninth Circuit and U.S. Supreme Court case law for the proposition that "[a]lthough the internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech--there is no 'basis for qualifying the level of First Amendment scrutiny that should be applied' to online speech" and that any test must "weigh the rights of the harmed party to expose an anonymous online speaker against the anonymous speaker's First Amendment right to free speech."
She then noted that courts had adopted four standards to apply this principle in cases involving online defamation: (1) the motion to dismiss or good faith standard, (2) the "prima facie" standard, (3) "somewhere between the good faith and prima facie standard," and (4) the summary judgment standard. The judge concluded that the Ninth Circuit, although it had examined these four approaches, "did not adopt a single standard to guide lower courts." In the absence of Ninth Circuit guidance, the judge concluded that the "prima facie" standard was appropriate for this case.
This "prima facie" standard, as explicated in Highfields Capital Mgmt. LP v. Doe, 395 F.Supp.2d 969 (N.D. Cal. 2005), has two prongs:
The court must first consider whether there is a real evidentiary basis to believe the defendant has engaged in wrongful conduct that has harmed the plaintiff as alleged in the complaint.
If the plaintiff satisfies the first prong, the court must then weigh the harm caused by the competing interests by ruling in favor of either party.
Analysis and Conclusion
In this case, the court concluded that Fodor satisfied the first element for his claim of defamation per se because he alleged (1) that the statements in the post were false because they linked him to serious crimes and impugned his integrity, honor, and character by implicating him in a criminal scheme to defraud investors; (2) that the statement was not privileged, was published to "billions or more users daily," and was the first search result for a search for his name; (3) the author was at fault; and (4) damages, which are presumed where defamation impugns a person's lack of fitness for a trade, business or profession, or tends to injure the plaintiff in his or her business.
Because Fodor had established a real evidentiary basis for believing that the blog post caused real harm and constituted defamation per se, the court then weighed whether the plaintiff's need to identify the anonymous speaker and proceed with his lawsuit justified the extent of the harm to Tazmanian's First Amendment rights and privacy. The court found that this balancing weighed in Fodor's favor because the post's statements "linke[d] plaintiff to a person charged with 'five serious crimes' … and characteriz[ed] plaintiff as someone who 'has been involved [in] perpetrating the fraud'." The court again noted that this statement was defamatory per se and that, in context, readers would conclude that Fodor was unworthy of investors' trust or money, the statements would come to the attention of likely investors and would likely be taken seriously, and there was "no compelling public interest in protecting anonymous speech of this character." The court found that Fodor had also show how the posting could harm his work as an oil and gas exploration geologist, including by causing him to lose investors in his work.
Based on this analysis, the court concluded that the balance tipped in favor of authorizing Fodor to serve limited third-party discovery on Blogspot, the service provider for the site on which the post appeared, but not on other sites where the same or similar usernames appeared. The court was "unwilling to cast such a broad net of discovery over entities that have no connection to this proceeding, and are simply other sites on which Tazmanian appears."