In the last two weeks, two courts--a New York state court and a federal court of appeals in Washington, D.C.--considered the issue of when to unmask anonymous online speakers. The New York state court considered the issue in the context of a pre-action discovery request and ordered Google to disclose the identity of an anonymous blogger so that a potential plaintiff could file a suit for defamation. The D.C. Circuit Court of Appeals considered what standard to require when presented with a motion to quash or enforce a subpoena seeking the identity of an anonymous defendant. These two cases represent the latest developments in the evolution of judicial rules governing the unmasking of anonymous online speakers.
In the Matter of Liskula Cohen, Index No. 100012/09 (N.Y. Sup. Ct. August 17, 2009)
On August 17, 2009, Judge Joan Madden of the Supreme Court of New York issued an order to compel Google (or Blogger.com, a Google product) to disclose the identity of a person who had posted allegedly defamatory statements about model Liskula Cohen on the blog "Skanks of NYC." The order was issued pursuant to New York State Civil Practice Law and Rules 3102(c), which allows pre-action discovery of information pursuant to a court order. Ms. Cohen had not instituted any action against the speaker but asserted that she would file an action if she could ascertain the blogger's identity. The order entitled Ms. Cohen to the blogger's name, address, email address, IP address, telephone number, and "all other information that would assist in ascertaining the identity of that person."
The Anonymous Blogger argued that Ms. Cohen was not entitled to any pre-action discovery because she could not demonstrate a adequate claim for defamation. The Blogger claimed that the allegedly defamatory statements--those calling Ms. Cohen a "skank," "skanky," a "ho," and "whoring"--were not objective statements of fact but rather opinion or hyperbole. The Blogger also argued that blogs are "for mere venting purposes, affording the less outspoken, [sic] a protected forum for voicing gripes, leveling invective, and ranting about anything at all." That context, the Anonymous Blogger claimed, "negates any impression that a verifiable factual assertion was intended."
The court disagreed with both arguments and held that Ms. Cohen was entitled to pre-action disclosure of the blogger's identity because she had "sufficiently established the merits of her proposed cause of action … and that the information sought [wa]s material and necessary to identify the potential defendant." In reaching its conclusion, the court first found that the descriptions of Ms. Cohen characterized her as "sexually promiscuous," a fact capable of being proved true or false. Second, the court rejected the argument that the context negated their factual verifiability, citing a Virginia court opinion for the idea that "[t]he protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse … this medium can be made to answer for such transgressions."
Solers, Inc. v. John Doe, No. 07-CV-159 (D.C. Cir. August 13, 2009)
On August 13, 2009, the D.C. Circuit Court of Appeals vacated and remanded a judgment on the issue of when to unmask an anonymous online speaker once litigation has begun. In its order, the court announced (PDF) that, when presented with a motion to quash or enforce a subpoena seeking the identity of an anonymous defendant in a case alleging defamation, the court would use a five-step test modeled on the guidelines of Doe v. Cahill. These are:
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Ensure that the plaintiff had adequately pleaded the elements of a defamation claim;
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Require reasonable efforts to notify the anonymous defendant that the complaint was filed and the subpoena was served;
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Delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash;
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Require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim within its control; and
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Determine that the information sought is important to enable the plaintiff to proceed with its lawsuit.
The court noted that it would not use a separate balancing test at the end of this analysis and that it would not require the plaintiff to exhaust alternative sources for learning the information.
After describing this test, the court provided additional information. First, if the complaint fails to state a claim, there is no reason to go further. Second, determining whether efforts to notify the defendant were "reasonable" would be left to the trial court's discretion. Third, the time allowed for the defendant to respond should account for the fact that anonymous defendants have, in other cases, appeared in the litigation through counsel. Fourth, in proffering evidence, a plaintiff can use affidavits, deposition transcripts, or courtroom testimony but must set forth, as precisely as possible, the statements by the anonymous defendant alleged to be defamatory. Finally, the court noted that the "importance" of the information should be easily satisfied where the anonymous speaker is the defendant and litigation cannot proceed until he is served.