Legal Protections for Anonymous Speech

Say that you receive notice that a someone has subpoenaed your ISP for information about your identity, and you move to quash (i.e., block or challenge) the subpoena. How will a court decide whether or not to allow the plaintiff to uncover your identity? This is a complex question that quickly brings us into a realm full of technical legal language and concepts. For those interested, this section and the State Law: Legal Protections for Anonymous Speech section that go with it delve into some of the details. If this makes your eyes glaze over, don't worry -- this section could be a good place for your lawyer to begin research.

Courts have recognized that the right to speak anonymously and pseudonymously is part of the First Amendment right to free speech, and accordingly some level of scrutiny is required before stripping an anonymous Internet speaker of that right. At the same time, those harmed by unlawful anonymous speech -- whether by defamation, misappropriation of trade secrets, or whatever else -- also have a right to seek compensation for their injury. When considering a subpoena or other discovery request seeking to unmask a speaker, courts attempt to balance these two competing rights.

While the courts in various jurisdictions have struck this balance in different ways, there is a growing consensus among courts that a would-be plaintiff must make a substantial legal and factual showing that his/her claim has merit before a court will unmask an anonymous or pseudonymous Internet speaker. In other words, these courts require a plaintiff trying to unmask an Internet speaker to bring forward a substantial amount of evidence to support the underlying legal claim (i.e., evidence that the anonymous speaker actually defamed the plaintiff or committed some other unlawful act that injured the plaintiff). These courts also impose a requirement that the plaintiff provide notice to the speaker whose identity is sought and an adequate opportunity to respond.  

Here are some of the cases applying a heightened standard: Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009); Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010); Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009); Zherka v. Bogdanos, 08 Civ. 2062 (S.D.N.Y. Feb. 24, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).

There are some older cases that allowed a would-be plaintiff to uncover the identity of a John Doe defendant without making a substantial evidentiary showing that the claim has merit, but subsequent cases have largely abandoned these approaches. See, e.g. In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000) (requiring the plaintiff to show only that his claim was made in good faith, and not out of an intent to harass); Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) (applying a "motion to dismiss" standard that requires only that a plaintiff make allegations that, if true, would entitle her to a legal remedy).

Courts generally apply a different test when the party seeks the identity of an online speaker to serve as a witness, rather than as a defendant in a John Doe lawsuit. These courts adopt a four-part test that requires the court to consider whether (1) the subpoena was issued in good faith; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to that claim or defense; and (4) information sufficient to establish or to disprove the claim or defense is unavailable from any other source. See, e.g., McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010); Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009); Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008).

Keep in mind that the cases discussed on this page are defamation cases and other lawsuits where speech played a critical role. Most copyright infringement lawsuits, especially those relating to peer-to-peer file sharing, fit into an entirely different category, even though they sometimes involve anonymous actors. According to an important case in this area, Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004), peer-to-peer file sharing "qualifies as speech, but only to a degree." Courts in copyright cases thus tend to impose relatively lenient standards on plaintiffs before allowing discovery of an anonymous defendant's identity. Additionally, it usually is relatively easy for a plaintiff in a copyright case to provide basic evidence to support its claim. Therefore, if you are involved in a copyright infringement case, you should not assume that the First Amendment will protect our identity, even if you are in a state that applies a high-burden standard in defamation cases.

Another wrinkle: be aware that a plaintiff may try to disguise a defamation claim by characterizing it as a copyright infringement claim in order to take advantage of more lenient standards for uncovering your identity. If you get sued for copyright infringement, but you believe that the dispute is really about your criticism of the plaintiff, you should bring this to the attention of your lawyer and/or the court. In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to: 43SB.com, 2007 WL 4335441 (D. Idaho 2007), provides a good example of a plaintiff trying to use copyright law to get around First Amendment protection for anonymous speech.

Make sure to check your state's page for cases in your jurisdiction on the First Amendment right to anonymous/pseudonymous speech.

 

Last updated on July 7th, 2010

   
 
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