Legal Protections for Anonymous Speech in California

Note: This page covers information specific to California. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

The court decisions on anonymity in California are mixed. Columbia Insurance v., 185 F.R.D. 573 (N.D. Cal. 1999), established a "motion to dismiss" standard that puts a relatively low burden on a plaintiff seeking to unmask an anonymous speaker, and other courts have followed it. Highfields Capital Management v. Doe, 385 F.Supp.2d 969 (N.D. Cal. 2005), applied a test influenced by Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). Finally, in Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), a California appellate court applied a standard that requires a plaintiff to make a "prima facie" showing on its underlying legal claim, where "prima facie" means bringing forward sufficient evidence for each of element within his or her control.

Columbia Insurance v., 185 F.R.D. 573 (N.D. Cal. 1999)

The Columbia Insurance Company owned the trademark rights associated with See's Candy Shops. Several unknown persons registered the domain names and with Network Solutions. Columbia Insurance sued these anonymous persons for a variety of claims, including trademark infringement and unfair competition. The company requested a temporary restraining order against the defendants' activities. Because imposing the restraining order would be impossible without knowing the defendants' identities, the court considered whether to allow "pre-action" discovery to obtain this information from Network Solutions.

The court announced four criteria for plaintiffs to satisfy before allowing such discovery: (1) the plaintiff should identify the anonymous party specifically enough that the court can determine that the defendant is a real person or entity that could be sued in federal court; (2) the plaintiff should identity all steps previously taken to find the defendant; (3) the plaintiff should establish that their suit could withstand a motion to dismiss; (4) the plaintiff should inform the court of the reasons for its discovery request and identify parties the parties upon which it requests the discovery be served.

The court rendered the "motion to dismiss" standard somewhat vague by indicating that a plaintiff "must make some showing that an act giving rise to liability actually occurred." Ordinarily, a plaintiff can survive a motion to dismiss simply by making allegations in the complaint that, if true, would entitle them to a legal remedy. The "some showing" language suggests that some kind of evidence might be required. On the other hand, the court stated that the "some showing" requirement was satisfied precisely because "[p]laintiff has demonstrated that their trademark infringement claim could survive a motion to dismiss." This injects some uncertainty into the test.

Later decisions by courts in California have not cleared up this uncertainty. In Rocker Management v. John Does 1 Through 20, the court was able to reject the plaintiff's claims under a "motion to dismiss" standard based on the plaintiff's insufficient pleadings alone. The court in Highfields Capital Management, meanwhile, cited as requiring the plaintiff to make at least some evidentiary showing.

Highfields Capital Management v. Doe, 385 F.Supp.2d 969 (N.D. Cal. 2005)

Highfields Capital Management (HCM) was the largest shareholder of the company Silicon Graphics. In a Yahoo! Finance chat room devoted to Silicon Graphics, an anonymous poster using the pseudonym "highfieldscapital" made statements implying that HCM was profiting at the expense of the company's other investors. HCM sued the anonymous poster in Massachusetts for commercial disparagement and trademark infringement and subpoenaed Yahoo! in the Northern District of California for information regarding the identity of highfieldscapital and another poster. The anonymous defendant moved to quash the subpoena. A federal magistrate judge considered the motion and recommended quashing the subpoena.

The magistrate used a test akin to that applied in Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007). Under this test, first the plaintiff is required put forward substantial evidence that "if unrebutted, tend[s] to support a finding of each fact that is essential to a given cause of action." Second, if the plaintiff passes this hurdle, the court is required balance the competing potential harms to the plaintiff versus to the defendant. The plaintiff must succeed on both counts in order to obtain disclosure.

In this case, the magistrate found that the plaintiff had not put forward enough evidence to pass the first hurdle, and so recommended quashing the subpoena. Further, although the plaintiff did not reach the second hurdle, it stated that the plaintiff would not satisfy it because of the strong First Amendment interests of the defendant and minimal threat to the plaintiff.

The district court accepted the magistrate's reasoning over HCM's objection and granted the anonymous defendant's motion to quash.

Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008)

Lisa Krinsky, a former officer of SFBC International, Inc., sued ten anonymous defendants over comments about her posted to a Yahoo! message board. According to court papers, the anonymous forum posters made "scathing verbal attacks" against SFBC, Krinsky, and fellow corporate officers. Krinsky filed a lawsuit in Florida state court in January 2006, alleging defamation and intentional interference with contractual relations. She served a subpoena on Yahoo! in California, seeking the identities of the anonymous forum posters.

After Yahoo! notified the posters, one of them -- Doe 6 -- filed a motion to quash the subpoena in California state court. The court denied the motion to quash, noting (quite strangely) that Doe 6's conduct "appeared to be similar to federal cases involving "'pump and dump' stock manipulation efforts," although no claim to that effect was in Krinsky's complaint.

In February 2008, a California appellate court reversed the lower court's ruling. In doing so, it applied a test that requires a plaintiff to make a "prima facie showing" that he or she has a valid legal claim against the anonymous speaker before allowing disclosure of the speaker's identity. The court made it clear that a prima facie showing required Krinsky to bring forward evidence (not just allegations) to support each element of her defamation and interference with contract claims, except for those elements that were beyond her control or dependent on the identity of the defendant.

Applying this standard, the court held that Krinsky had not made a prima facie showing on her defamation claim because the message board comments, viewed in context, constituted opinion protected by the First Amendment rather than statements of fact about Krinsky. The court further held that Krinsky could not make a prima facie showing on her interference with contract claim because this claim was based on the same constitutionally protected opinion.


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