Legal Protections for Anonymous Speech in Delaware

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

Delaware courts apply a protective standard before permitting disclosure of an anonymous Internet speaker's identity. The leading case is Doe v. Cahill, 884 A.2d 451 (Del. 2005), in which the Supreme Court of Delaware announced a "summary judgment" standard, which requires a plaintiff to bring forward sufficient evidence on those elements of its claim that are within its control. This is one of the most influential cases in this area of law.

Doe v. Cahill, 884 A.2d 451 (Del. 2005)

Several anonymous Internet users posted negative comments about local politician Patrick Cahill on a blog. Cahill and his wife sued four anonymous defendants for defamation. Through discovery, the plaintiffs determined that Comcast was the ISP for one of the anonymous posters and subpoenaed Comcast for information about the poster's identity. After being notified of the subpoena, the anonymous defendant filed a motion for a protective order to prevent disclosure.

The trial court, in Cahill v. John Doe-Number One, 879 A.2d 943 (Del. Super. Ct. 2005), applied a "good faith" standard to the subpoena, citing the Virginia case In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000). The court found that the plaintiffs had satisfied this standard and ordered Comcast to comply with the subpoena. The anonymous defendant appealed.

On appeal, the Supreme Court of Delaware rejected the trial court's "good faith" test as "too easily satisfied to protect sufficiently a defendant's right to speak anonymously." Instead, it announced a more rigorous standard. Under this standard, first the plaintiff must make reasonable efforts to notify the anonymous defendant of the subpoena. Second, the plaintiff must put forward enough evidence on each element of the claim that it would survive a motion for "summary judgment." Surviving a motion for "summary judgment" mean that the plaintiff can bring forward enough evidence to demonstrate the existence of a factual dispute on each of the key elements of its claim. The court loosened the standard in one important respect: a plaintiff need not put forward evidence on those elements of its claim that are beyond its control (meaning that they are difficult to prove without knowing who the defendant is), such as elements involving the defendant's state of mind.

Applying this test, the court found that the defendant's statements were "incapable of a defamatory meaning," and therefore the plaintiffs' evidence was not sufficient to pass the summary judgment test. Moreover, because the defendant's statements were not defamatory, the court ordered the trial court to dismiss the plaintiffs' entire claim.


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