Essent v. Doe: Anonymous Blogger Wins on Appeal

The anonymous blogger who runs "The-Paris-site" will remain anonymous, at least for now. Yesterday, a Texas appellate court ordered the trial court to vacate its previous order compelling the blogger's ISP to reveal his name and address to Essent Healthcare, Inc. (For background on the case, see our database entry, Essent v. Doe, and my previous post.)

It's been a strong couple of months for anonymous speech online. First, Orthomom, then Mobilisa, and now this case. The proverbial tide really does appear to be turning in favor of imposing a rigorous standard prior to ordering disclosure of an anonymous poster's identity. In this case, the Texas court acknowledged that the right to speak anonymously online is protected by the First Amendment and that mere allegations of wrongdoing are insufficient to overcome this right. The court endorsed the "summary judgment" standard set forth in Doe v. Cahill and followed in Best Western Int'l v. Doe:

[T]o obtain discovery of an anonymous defendant's identity under the summary judgment standard, a defamation plaintiff must submit evidence to establish a prima facie case for each essential element of the claim in question. In other words, the defamation plaintiff, as the party bearing the burden of proof at trial, must introduce evidence creating a genuine issue of material fact for all of the elements of a defamation claim within plaintiff's control.

Note that the court did not address directly another aspect of the Cahill standard -- the requirement that a plaintiff seeking discovery take reasonable steps to notify the anonymous poster in order to give him/her an opportunity to object. Here, the blogger's ISP notified him of the pending discovery request in order to meet the requirements of the Cable Communications Act, 47 U.S.C. 551(c). (The Cable Communications Act generally forbids cable providers from disclosing personally identifiable information about subscribers. It contains an exception, however, for disclosures made pursuant to a court order, so long as the subscriber is notified.)

Note also that the court did not go as far as the Arizona court in Mobilisa, which imposed not only a summary judgment standard, but also an extra balancing test, under which the court weighs the defendant's First Amendment interests against the strength of the plaintiff's case. Incidentally, this appears to be just the kind of case where the extra balancing test might make a difference. There is a good chance that the anonymous blogger and /or a number of the anonymous posters to his blog are current Essent employees, and there is signficant danger of retaliation on the part of the hospital should disclosure be made. This consideration would favor nondisclosure under the Mobilisa balancing test, but would be largely irrelevant under a plain summary judgment standard, which just looks at the plaintiff's evidence.

Since the appellate court sent the case back to the trial court for further consideration and application of the Cahill standard, there is no guarantee that the blogger will stay anonymous indefinitely. Now, it all depends on the strength of the case that Essent manages to put forward. At the very least, however, the next phase will force Essent to be specific about what statements are false, to provide evidence supporting its claims of falsity, and to show harm resulting from them.

Congratulations to "fac_p" and James Rodgers of the Moore Law Firm for a fine victory.

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