Tag Archives: John Doe Actions

Blogger anonymity upheld against John Doe defamation claims

Originally posted 2006-05-28 09:59:40. Republished by Blog Post Promoter

The defendant-appellant, John Doe No.1, anonymously posted allegedly defamatory statements about the plaintiff-appellee, Cahill, on an internet blog. Cahill brought a defamation action. Seeking to serve process on Doe, Cahill sought to compel the disclosure of his identity from a third party that had the information. A Superior Court judge applied a good faith standard to test the plaintiff’s complaint and ordered the third party to disclose Doe’s identity. Doe appeals from the Superior Court’s order. Because the trial judge applied a standard insufficiently protective of Doe’s First Amendment right to speak anonymously, we reverse that judgment.

The decision in John Doe v. Cahill from the Delaware Supreme Court is here. This is the trend: Appellate courts are not permitting “John Doe” defamation actions to be their own justification. These rulings prevent plaintiffs to merely file a flimsy complaint and get quick discovery from ISP’s so plaintiffs can learn the identity of bloggers and others on the Internet who are virtually never actually committing legally actionable defamation — but who are critics the plaintiff would like identified.

Courts are not making it impossible for bona fide plaintiffs to get discovery to which they’re normally entitled. But igot-gouzenko-hoodedthey are requiring, in cases like these, that plaintiffs make a legal showing of their bona fides up front,which is eminently reasonable considering how meritless most defamation actions are.

It doesn’t do me, as a defendant, any good to win a motion to dismiss if the main thing you, as a plaintiff and the subject of my criticism, already have what you want — my identity — and are now free to get me fired, cut off from my suppliers, or shunned, as the case may be. It also removes some of the burden on defendants, who are usually financially worse off in these situations, from having to hire attorneys to quash subpoenas served on ISP’s, much less to make appearances on behalf of anonymous parties. This is a good trend.

UPDATE: More, similar news from California.

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…

John Doe in Illinois

Originally posted 2010-06-17 12:43:59. Republished by Blog Post Promoter

Evan Brown lays this out so clearly it would be a shame to go through the trouble of paraphrasing:

Zynga (you know, the creator of Farmville and Mafia Wars) has filed a federal lawsuit against the operators of websites that sell virtual currency and goods for use in Mafia Wars. . . .

In federal court, you can’t start the discovery process until the parties have met to discuss certain issues (this is called a Rule 26(f) conference). But there’s an obvious chicken and egg problem in cases like this that have anonymous defendants — how do you confer with a defendant you don’t know? You’re kind of stuck if you can’t take discovery to learn who he is.

Fortunately the court can allow discovery to happen before the Rule 26(f) conference when there is good cause.

So Zynga has argued that there is good cause to allow it to serve subpoenas on Godaddy (the registrant for the MAFIAWARSDIRECT.COM, MWBLACKMARKET.COM, and MWFEXPRESS.COM domain names) and PayPal, who apparently facilitated the purchase of virtual goods.

The court agreed that Zynga should get to serve the subpoenas. But it found that the subpoenas as proposed were too broad. For example, Zynga sought all billing and account records, server logs, website content, contact information, transaction histories and correspondence for the persons or entities that purchased services from the offending sites. The court held that the limited discovery appropriate for Zynga at the early stage would only allow it to get identifying information for the site owners.

He has more on the topic of John Doe defendants here, too.

It’s good to the be the king

Originally posted 2008-01-19 22:38:43. Republished by Blog Post Promoter

It's Good to be the KingMichael Atkins:

Western District [of Washington] Judge John Coughenour appears to have stopped taking new trademark cases. New matters assigned to him reportedly are reassigned to other judges with the statement that “Judge Coughenour does not accept trademark cases.”

How odd. I assume that he can do this because he is on Senior Status. The irony is that, according to Mike, Judge Coughenour is a pretty good trademark hand (though he’s been called out pretty harshly about other stuff). But the shame of it is that so many judges who have no idea about the area of trademark law don’t have — or exercise — this privilege.

Grapes of Rath

Originally posted 2005-03-27 11:07:00. Republished by Blog Post Promoter

The Patently Obvious Blog reports that the Federal Circuit, still clinging to antique notions of national sovereignty, quaintly rules that although the U.S. is indeed a signatory to the Paris Convention (of course! Paris!), “the Paris Convention is not ‘self executing’ and thus has no direct effect on U.S. law.” In other words, Congress has to amend the Lanham Act to amend the Lanham Act. Evidently this “sovereignty” fetish applies to important matters like trademarks, not the death penalty and stuff.

Incidentally, the ruling means that a certain Dr. Rath (sounds like a James Bond nemesis, or maybe a very bad advice columnist, doesn’t it?) (and it doesn’t help that in German you pronounce it like “rot”) cannot obtain a trademark registration for his last name in the U.S. despite his holding a foreign registration.

One more reason why they laugh at us in Europe, I guess…

UPDATE:  See John Welch here.

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.

John Doe Discovery Cases Go from Meritless to Expensive

The John Doe lawsuit filed solely for discovery purposes is not only dying, but it may become its very own tort! We addressed some of the issues and developments in this area early last month. Daniel Solove just posted to the Politech list about an important case involving anonymity on the Internet. He blogs the story on his Concurring Opinions blog, to wit:

The company filed a “John Doe” lawsuit against the anonymous blogger for a tort claim of “breach of fiduciary duty and breach of duty of loyalty.” The employee was completely unaware that a lawsuit had been filed against him.

Three months after filing the lawsuit, the company filed an emergency motion to prevent “John Doe” from posting more messages. It claimed that Doe’s posting violated the company’s anti-harassment policy. The company obtained a subpoena and served it on Yahoo. Yahoo sent an email to the employee that Yahoo would respond within 15 days unless the employee filed a motion to quash. The employee claimed he never received the email. Yahoo subsequently turned over the employee’s identity to Allegheny Energy. Afterwards, Allegheny Energy filed papers to discountinue its civil action against the employee. The employee was then fired for making the racial slur.

The employee has now sued, claiming: (1) abuse of process; (2) wrongful use of civil proceedings; (3) intrusion upon seclusion; (4) public disclosure of private facts; and (5) wrongful discharge.

This is a fascinating lawsuit that, prima facie, sounds like it has a decent likelihood of succeeding. I wonder what Walter Olson’s slant would be on this, in terms of who the “overlawyerer” is…

Final twist, from Solove:

The case also raises larger policy issues about employee speech and privacy outside of the workplace. The comment made by the blogger was quite offensive. He wrote: “[W]e were force fed ‘love thy n*****’ with [Allegheny Energy’s] DIVERSITY program.” Should a company have any business in finding out which employee made this comment and disciplining him even though he made the comment at his home?