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Internet anonymity still a judicial fave

Evan Brown reports:

A trial court in Arizona has quashed a subpoena served on Godaddy, issued by a plaintiff in a defamation suit against an anonymous website owner. Applying the standard articulated in the Delaware Supreme Court decision of Doe v. Cahill, 884 A.2d 451 (2005), the court held that the plaintiff had failed to present a strong enough case to overcome the defendant’s First Amendment right to speak anonymously. Under the Cahill standard, a plaintiff seeking to unmask an anonymous Internet defendant must put forth evidence sufficient to withstand a motion for summary judgment before the court will order the identity to be revealed.

We’ve discussed this issue beforemore than once. Although I am chary of the general proposition that Internet anonymity is an unalloyed good thing, this is a good policy: Where there is no defendant but a John Doe, as justified as it may be to file against unknown defendants in general, it is the court’s duty to make sure that the power of the court be utilized to obtain discovery in pursuit of a meritless claim.

Delaware Ups Standard for ISP Discovery in Defamation Suits

Wired reports:

In a decision hailed by free-speech advocates, the Delaware Supreme Court reversed a lower court decision requiring an internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official.

In a 34-page opinion, the justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers, publisher of the Delaware State News.

This is an important development. According to the Electronic Frontier Foundation, “This is the first state supreme court to rule on a ‘John Doe’ subpoena or to address bloggers’ rights.” Certainly not the first state court, however.

As a New Jersey practitioner, I used to utilize John Doe claims as a way to find out the identity of anonymous Internet critics of my business clients. I knew that if such a lawsuit were tested on a motion to dismiss basis, it would likely fall short, because the claims essentially sounded in defamation — a notoriously difficult claim to maintain in American law. (“Likely fall short” is not the same as “definitely fall short” — because knowingly filing a meritless suit would be unethical and sanctionable, John Doe defendant or not.) But because there was no defendant to make such a motion, I could issue subpoenas in the court’s name in the bona fide attempt to find out who, exactly, my defendant was — which is usually all the victim of anonymous criticism is looking for.

Then, in 2001, the New Jersey Appellate Division wisely ended that practice. (Check out the link for a good analysis (with a very corporate-plaintiff oriented conclusion) of the New Jersey cases from a couple of Gibson, Dunn attorneys ).

I’m somewhat skeptical of the privacy obsession that some people have, but in this case I believe these decisions are right. Bringing litigation that is just short of meritless in order to get discovery that would otherwise be unavailable may be legal elsewhere, but it probably shouldn’t be. I do wonder, however, about the role of the courts in making these policy decisions, which strike me as more legislative than judicial.

In fact, I once merited to be interviewed by Salon magazine in connection with the Media Whores Online controversy, and pronounced that the option of anonymity is a corollary to free speech. I’m not sure I would say that so forcefully now, but I do think these cases came out right. As it stands now, however, we may be looking at a world of forum-shopping to get anonymity-busting discovery in John Doe actions, which remains obtainable in many states, leaving it to judges to “fashion” their own doctrines and “multi-part tests” to deal with the issue. I’d prefer a model statute for consideration by the various state legislatures. I would even write it. Any takers?

The other side of anonymity

unknown-comicWhat happens when it’s the plaintiff that is anonymous, and wants to stay that way?

Best of 2013: Cooley Law v. John Doe 1, in which Doe does not

First published May 1, 2013.Essex County Hall of Records (and courthouse), Newark NJ

Today I was preparing a brief in opposition to a subpoena served on a client seeking information to identify certain anonymous third parties.  [Update:  The result of our motion can be seen here.]  The argument against such business is pretty well established, as Paul Alan Levy and I had the experience of arguing together a little while back.  The up-to-date version of the argument, which of course also includes disclosure about anonymous bloggers, goes something like this:

The Internet is a public forum, and First Amendment rights fully apply to communications over the Internet.  The Supreme Court has treated the Internet as a forum of preeminent importance because it places in the hands of any individual who wishes to express his views the opportunity to reach other members of the public who are hundreds or even thousands of miles away at virtually no cost. Concomitantly, courts have also recognized the right to express oneself online anonymously (even at considerable social cost, it can be argued — and I’ve argued that side of it, too).

Numerous courts have enunciated standards to meet these due process concerns and govern the identification of anonymous Internet speakers. In the leading case on the subject, Dendrite v. Doe, 342 N.J. Super. 134 (App. Div. 2001), a company sued four individuals who had criticized it on a Yahoo! bulletin board and sought discovery of third parties to unmask their indentities. The court in Dendrite set out a five-part standard for cases involving subpoenas to identify anonymous Internet speakers:

1. Give Notice: Require reasonable notice to the potential defendants and an opportunity for them to defend their anonymity before issuance of any subpoena;

2. Require Specificity: Require the petitioner to allege with specificity the speech or conduct that has allegedly violated its rights;

3. Ensure Facial Validity: Review each claim in the complaint to ensure that it states a cause of action upon which relief may be granted based on each statement and against each defendant;

4. Require An Evidentiary Showing: Require the petitioner to produce evidence supporting each element of its claims; and

5. Balance the Equities: Weigh the potential harm (if any) to the petitioner from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.

Similarly, in Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court ruled that a town councilman who sued over statements attacking his fitness to hold office could identify the anonymous posters only upon a showing that he was not proceeding in bad faith and could establish that the statements about him were actionable because they might have a defamatory meaning. Though it rejected the balancing component of Dendrite, the Cahill case on all elements of a defamation claim that ought to be within his control without discovery, including that the statements are false. Other appellate and trial courts that have addressed the issue of subpoenas to identify anonymous Internet speakers, as well as several federal district courts, have adopted variants of the Dendrite or Cahill tests.

I didn’t say they all did, though, although I might well have thought so — and I might have been right until April 4, 2013, when the Court of Appeals of Michigan said “no” in a case called Thomas M Cooley Law School v John Doe 1.  The Westlaw version of the opinion, which does not appear yet to include any proprietary copyrightable material of West, is at the link.

And what did the Court of Appeals of Michigan have to say?   Read More…

Cooley Law v. John Doe 1, in which Doe does not

Essex County Hall of Records (and courthouse), Newark NJToday I was preparing a brief in opposition to a subpoena served on a client seeking information to identify certain anonymous third parties.  [Update:  The outcome of our motion can be found here.]  The argument against such business is pretty well established, as Paul Alan Levy and I had the experience of arguing together a little while back.  The up-to-date version of the argument, which of course also includes disclosure about anonymous bloggers, goes something like this:

The Internet is a public forum, and First Amendment rights fully apply to communications over the Internet.  The Supreme Court has treated the Internet as a forum of preeminent importance because it places in the hands of any individual who wishes to express his views the opportunity to reach other members of the public who are hundreds or even thousands of miles away at virtually no cost. Concomitantly, courts have also recognized the right to express oneself online anonymously (even at considerable social cost, it can be argued — and I’ve argued that side of it, too).

Numerous courts have enunciated standards to meet these due process concerns and govern the identification of anonymous Internet speakers. In the leading case on the subject, Dendrite v. Doe, 342 N.J. Super. 134 (App. Div. 2001), a company sued four individuals who had criticized it on a Yahoo! bulletin board and sought discovery of third parties to unmask their indentities. The court in Dendrite set out a five-part standard for cases involving subpoenas to identify anonymous Internet speakers:

1. Give Notice: Require reasonable notice to the potential defendants and an opportunity for them to defend their anonymity before issuance of any subpoena;

2. Require Specificity: Require the petitioner to allege with specificity the speech or conduct that has allegedly violated its rights;

3. Ensure Facial Validity: Review each claim in the complaint to ensure that it states a cause of action upon which relief may be granted based on each statement and against each defendant;

4. Require An Evidentiary Showing: Require the petitioner to produce evidence supporting each element of its claims; and

5. Balance the Equities: Weigh the potential harm (if any) to the petitioner from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.

Similarly, in Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court ruled that a town councilman who sued over statements attacking his fitness to hold office could identify the anonymous posters only upon a showing that he was not proceeding in bad faith and could establish that the statements about him were actionable because they might have a defamatory meaning. Though it rejected the balancing component of Dendrite, the Cahill case on all elements of a defamation claim that ought to be within his control without discovery, including that the statements are false. Other appellate and trial courts that have addressed the issue of subpoenas to identify anonymous Internet speakers, as well as several federal district courts, have adopted variants of the Dendrite or Cahill tests.

I didn’t say they all did, though, although I might well have thought so — and I might have been right until April 4, 2013, when the Court of Appeals of Michigan said “no” in a case called Thomas M Cooley Law School v John Doe 1.  The Westlaw version of the opinion, which does not appear yet to include any proprietary copyrightable material of West, is at the link.

And what did the Court of Appeals of Michigan have to say?   Read More…