Delaware Ups Standard for ISP Discovery in Defamation Suits
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?