Discovering the Identity of Anonymous Internet Posters
By Richard Raysman and Peter Brown
New York Law Journal
September 11, 2001
News travels fast. So fast, on the Internet, that in a few hours a company's reputation can be damaged, its trade secrets revealed, its stock price slammed ("cybersmearing") or sent through the ceiling ("cyberhyping") by a few anonymous comments posted on an Internet bulletin board. Increasingly, affected companies are filing actions seeking monetary relief or an injunction against further damaging postings. In order to prosecute these and similar actions, companies are asking courts to order Internet Service Providers (ISPs) to reveal the identity of anonymous posters.
This article will discuss some of the recent cases in which courts have sought to develop workable standards in dealing with requests for discovery of identifying information in cases involving anonymous on-line postings. On the one hand are individuals and companies seeking to protect their legitimate pecuniary and proprietary interests against defamatory and otherwise harmful speech. On the other hand are the free speech rights of the anonymous posters and the concerns of civil liberties groups such as the American Civil Liberties Union and the Electronic Frontier Foundation that subpoenas are being used to harass and intimidate anonymous posters engaged in constitutionally protected speech.
Free Speech, Limitations
The right to speak versus the right to redress. The Supreme Court has recognized that the First Amendment protects speech on the Internet, see Reno v. ACLU, 521 U.S. 844, 870 (1997); the Court has also recognized a First Amendment right to engage in anonymous speech, see McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (recognizing a First Amendment right to distribute anonymous handbills in connection with a tax referendum). But at the same time, the Court has also recognized that there are limitations on the right to free speech, including, among other things, the application of defamation laws. See id. at 351 n.13.
Accordingly, the courts that have considered defamation cases involving anonymous Internet speech have rejected the position that there is an absolute, or near-absolute right to anonymous speech on the Internet. For example, in Melvin v. Doe, 49 Pa. D. & C.4th 449 (Ct. C.P. Allegheny County Nov. 15, 2000), a Pennsylvania Superior Court Judge brought a libel action against 13 anonymous posters who alleged that she lobbied on behalf of a local attorney for a judicial appointment. The Court of Common Pleas held that "the First Amendment protections afforded the anonymous speaker do not extend to speech that may be false and injurious." The court concluded that the First Amendment interests of anonymous posters could be protected only to the extent that they "do not interfere with the underlying purposes of state tort law." Thus, the court concluded, a plaintiff may use discovery to learn the identity of an anonymous defendant once a prima facie case of libel has been established. The court acknowledged that pursuit of the defamation action would require that the anonymous speaker lose his anonymity, but held that "there is no case law which would suggest that the First Amendment leaves the states without any meaningful tort law to discourage the publication of defamatory statements concerning public officials." The case is currently on appeal, see Melvin v. Doe, Nos. 2115 WDA 2000 & 2116 WDA 2000 (Pa. Super. Ct.). See also Hvide v. Does, No. 99-22831 (11th Jud. Cir. 2000), cert. denied, 770 So.2d 1237 (Fla. 3rd Dist. Ct. App. 2000) (rejecting the ACLU's First Amendment argument that defendants should remain anonymous until a court could make preliminary rulings about the merits of the case).
First Amendment Standard
Formulating a First Amendment standard. Other courts that have considered anonymous poster cases have articulated multipart tests to be applied in evaluating the First Amendment rights of anonymous Internet posters against the needs of plaintiffs for identifying information and have established successively more particularized standards to such requests. The first such reported case appears to be In re Subpoena Duces Tecum to America On-line, Inc., 52 Va. Cir. 26 (Cir. Ct. Fairfax County 2000). The court evaluated a motion to quash a subpoena issued in an action brought in Indiana state court against anonymous posters whose statements were alleged by a corporate plaintiff not only to be defamatory, but to have included confidential corporate information. The court commented that "[t]he right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions." Id. at 34-35. The court held that Virginia courts considering requests to enforce subpoenas in actions brought in other states must examine the pleadings or evidence presented by the plaintiff to determine whether the plaintiff "has a legitimate, good faith basis" for its contention that it "may be the victim of conduct actionable in the jurisdiction where suit was filed," and determine further whether the information sought "is centrally needed" to prosecute the plaintiff's claims. Id. at 37.
In Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1093 (W.D. Wash. 2001), the District Court concluded that "discovery requests seeking to identify anonymous Internet users must be subjected to careful scrutiny by the courts," and enunciated a four-part test to be utilized in determining whether the plaintiff's need outweighs the poster's first Amendment rights. A court must determine whether the subpoena was "issued in good faith and not for any improper purpose"; whether the information which the party seeks "relates to a core claim or defense"; and whether the information identifying the poster "is directly and materially relevant to that claim or defense." To these requirements, essentially similar to the requirements set forth by the Virginia court in In re Subpoena Duces Tecum, the court added a fourth requirement, that the "information sufficient to establish or to disprove that claim or defense is unavailable from any other source" Id. at 1095.
The New Jersey Appellate Division recently decided two cases involving anonymous Internet posters. In Dendrite International, Inc. v. Doe, 342 N.J. Super. 134 (App. Div. 2001), the court adopted a balancing test similar to that set forth in 2TheMart.com and In re Subpoena Duces Tecum, but adding additional requirements. Most significantly, the court held that the plaintiff seeking discovery must "undertake efforts to notify" the defendant that discovery is being sought and provide a "reasonable opportunity" to oppose the request. The plaintiff must also identify "the exact statements purportedly made by each anonymous poster that the plaintiff alleges constitutes actionable speech." As in the earlier cases, the plaintiff must set forth a prima facie case against the anonymous defendant and present sufficient evidence to support each cause of action pleaded. See also Immunomedics, Inc. v. Doe, 342 N.J. Super. 160 (App. Div. 2001) (applying the Dendrite test in an action alleging anonymous posting of confidential and proprietary information).
Anonymous posters and anti-SLAPP statutes. At least one court has treated an action filed against anonymous posters as a "strategic lawsuit against public participation" (SLAPP) and applied the California anti-SLAPP statute in disposing of the case. Some 16 states currently have similar anti-SLAPP legislation and bills are pending in a dozen more. See http://www.sirius.com/~casp/menstate.html (collecting statute) (visited Aug. 28, 2001). Anti-SLAPP statutes typically require a plaintiff seeking redress against speech involving a public issue to make some preliminary showing concerning the merits of the litigation.
In Global Telemedia International, Inc. v. Doe, 132 F. Supp.2d 1261 (C.D. Cal. 2001), two of the anonymous posters (by then identified) sought dismissal under the California anti-SLAPP statute, which permits defendants to seek dismissal of claims arising from the exercise of free speech "in connection with a public issue" if the plaintiff cannot show a probability of success on its claims. The court found that the anonymous comments posted by the defendants did not purport to be statements of fact but were exaggerations, broad generalities, colorful and figurative and part of a "highly animated exchange." In addition, the plaintiff was unable to link the statements to the company's drop in stock prices. The court granted the defendants' motions to strike, and later awarded the defendants over $55,000 under the attorney fee award provisions of the anti-SLAPP statute.
Nonparty anonymous posters. At least one court has considered a request for discovery concerning the identity of a nonparty anonymous posters. In Anderson v. Hale, 2001 U.S. Dist. LEXIS 6127 (N.D. Il. 2001), a federal district court held that Internet account information for members of a church who posted anonymously on the church's Web site is not subject to discovery in civil rights litigation against the church and its founder. The court held that discovery of the information would chill the First Amendment associational rights of the church members and the harm resulting from the disclosure was not outweighed by a sufficient showing of need on the part of the plaintiff for the information sought. See also Doe v. 2TheMart.com, 140 F. Supp. at 1095 (commenting in dicta that disclosing the identity of a nonparty witness "is only appropriate in the exceptional case where the compelling need for the discovery sought outweighs the First Amendment rights of the anonymous speaker").
An attorney counseling a client who wishes to proceed against an anonymous Internet poster should carefully analyze the client's case and consider the following:
• Is the client able to satisfy the higher level of scrutiny applied in the reported cases to actions brought against anonymous posters? The client should be prepared to identify specifically the anonymous postings that are alleged to form the basis of each cause of action and establish a prima facie case as to each cause of action alleged. The client must also be prepared to show how the information sought relates to the claims being brought.
• Is information concerning the identity of the anonymous poster otherwise available? A determination should be made as to whether the identity of an anonymous poster can be obtained from other, legitimate sources.
• Is it likely that the client can show that its need for the information will satisfy the kind of balancing analysis applied in the reported decisions? Clients should be cautioned that courts have been critical of actions that appear to be attempts merely to harass and intimidate anonymous posters rather than to obtain judicial redress.
• Is the action being contemplated subject to an anti-SLAPP statute? Plaintiffs litigating in states with anti-SLAPP statutes must consider the risk that an action may be found to fall under such a statute and might result in an award of attorney fees to the anonymous poster.
• Is identifying information being sought concerning a nonparty anonymous poster? If so, all reasonable efforts should be made to obtain the necessary information from other sources. Failing that, the client should be prepared to show a compelling need for the identifying information.
Richard Raysman and Peter Brown are partners at Brown Raysman Millstein Felder & Steiner LLP in New York. Tracy Pulito, an associate at the firm, assisted with the preparation of this article.
Date Received: September 10, 2001