Anonymity

Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.

Date: 

07/02/2012

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Yelp, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Circuit Court for the City of Alexandria

Case Number: 

Trial: 12003401; Appeal: 0116-13-4

Verdict or Settlement Amount: 

$1,500.00

Legal Counsel: 

Paul Alan Levy and Scott Michelman (Public Citizen Litigation Group), and Raymond D. Battocchi (Raymond D. Battocchi, P.C.)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

On July 2, 2012, Hadeed Carpet Cleaning, Inc., a Virginia rug cleaning company, filed a complaint for defamation and conspiracy to defame against seven anonymous Yelp reviewers in the Circuit Court for the City of Alexandria.

Hadeed claimed these users' reviews were false and defamatory because it "had no record that the negative reviewers were ever Hadeed Carpet customers." Additionally, Hadeed noted that many of the negative reviews contained similar "themes" (for example, that Hadeed had doubled the price) and that one of the reviewers was from an area where Hadeed does not do business. Based on this evidence, Hadeed alleged that the authors of the negative reviews "acted together for the purpose of willfully and maliciously injuring Hadeed Carpet's reputation." Hadeed requested $1.1 million in punitive and compensatory damages, attorney's fees and costs, and a permanent injunction.

On July 3, 2012, Hadeed issued a subpoena duces tecum to Yelp seeking information identifying the anonymous commenters.

Yelp responded with a written objection to the subpoena on July 19, 2012. It contended: (1) that Hadeed had not complied with Virginia's procedure for subpoenas to identify anonymous Internet users, Code § 8.01-407.1, because it did not list the allegedly defamatory comments with adequate specificity; (2) that the First Amendment prevented disclosure of the defendants' identities because Hadeed had failed to present a prima facie case that their speech was defamatory; and (3) that the subpoena could not be enforced against a foreign non-party company.

On July 30, 2012, Hadeed filed a renewed subpoena that complied with the procedural requirements of Code § 8.01-407.1 by attaching documents allegedly establishing the basis for Hadeed's belief that the challenged posts were actionable. In its accompanying Notice of Filing Supporting Material, Hadeed asserted that "determining whether or not Defendants were customers of Hadeed is centrally necessary for Hadeed to advance any defamation claim."

Yelp filed written objections to the renewed subpoena on September 5, 2012. Yelp again asserted that Hadeed had failed to meet the appropriate legal test for obtaining identifying information about anonymous speakers because it had not "produce[d] evidence sufficient to make out a prima facie case" of defamation. Yelp noted that numerous appellate courts, most notably in Dendrite v. Doe and Doe v. Cahill, had held that that this was the proper test under the First Amendment, and argued that to the extent that Virginia had set a more permissive standard than Dendrite, Virginia should "join the national consensus standard on this issue." Yelp also asserted that it was not subject to personal jurisdiction in Virginia because it had no property there, and because Hadeed had consented to exclusive jurisdiction in California by agreeing to Yelp's terms of service when it chose to advertise on Yelp. Finally, Yelp argued that the subpoena was overbroad because Hadeed sought all documents Yelp possessed for the users that "relate[d] in any way" to Hadeed, which could encompass private communications subject to other legal protections or not reasonably accessible to Yelp.

On September 26, 2012, Hadeed moved to overrule the objections and enforce the subpoena. Hadeed argued that the proper legal standard for obtaining information about Yelp's anonymous users came from Virginia Code § 8.01-407.1 and was satisfied by its good faith claim that "it reviewed its own detailed customer files and c[ould] find no evidence that these specific seven persons were ever Hadeed customers." Hadeed also claimed that its attempts to obtain those identities through publicly available information or through discussions with Yelp had been unsuccessful. Hadeed also maintained that it had properly subpoenaed Yelp's records by serving the subpoena on Yelp's registered agent for service of process in Virginia, and argued that "Yelp conducts business over the internet in Virginia, and is present in Virginia through its registered agent." Further, Hadeed argued, it had not waived jurisdiction in Virgina, claiming that Yelp's terms of service only pertained to disputes arising out of the advertising relationship. Finally, Hadeed argued that the subpoena was not overbroad, as it only requested "postings" relating to Hadeed, not "communications," and Yelp's objection that the subpoena might encompass private communications was therefore unfounded.

On October 22, 2012, Yelp filed a memo in support of its objections to the subpoena and opposing Hadeed's motion to compel discovery. Yelp reiterated that the First Amendment "provides special protections for anonymity on the Internet," and argued that the court should apply the Dendrite test. The subpoena could not be enforced under this test, Yelp argued, because Hadeed had "failed to produce any evidence that any of the statements made about it are false." Yelp also continued to assert that it was not subject to jurisdiction. It argued that "predicating personal jurisdiction on the mere fact that Yelp enables its users to make statements accessible in Virginia through the Internet offends traditional principles of state sovereignty."

Hadeed responded to Yelp's objections on Oct. 31, 2012, reiterating its previous arguments.

The trial court held oral arguments on November 14, 2012, and enforced the subpoena on November 19, 2012. According to the court, it had jurisdiction over the motion based on service of the subpoena on Yelp's registered agent. The court added, however, that "even if a registered agent alone was an insufficient basis for jurisdiction," the court had jurisdiction "in light of Yelp's conduct directing electronic activity in Virginia and business relationships with Virginia companies and residents." The advertising agreement between the parties, the court held, did not deprive the court of jurisdiction, because the motion to compel was not a dispute between Hadeed and Yelp but rather a dispute between Hadeed and the anonymous reviewers, parties not governed by the agreement.

Finally, the trial court held that the proper standard for compelling the identity of anonymous speakers was laid out in Virginia Code § 8.01-407.1, which requires a showing that the statements "may be tortious" and that the speaker's identity is "important" or "relates to a core claim." Hadeed had met the statutory standard, the court held, because "the statements [we]re tortious if not made by customers" and "the identity of the communicators [w]as essential to maintain a suit for defamation." The court found no constitutional problem with this result. Although the court "recognize[d] that anonymous speech and even false speech is entitled to protection under the First Amendment," it stated that such speech is "not entitled to the same level of protection as truthful or political speech." Without citing Dendrite or Cahill, the court therefore ordered Yelp to produce information identifying the anonymous speakers.

Yelp refused to enforce the subpoena and, on January 9, 2013, the court held Yelp in contempt and imposed a $500 fine and $1000 in attorney fees. The sanctions were stayed pending appeal.

Yelp appealed to the Court of Appeals of Virginia and filed its opening brief on May 7, 2013. Yelp argued that the circuit court violated the First Amendment by ordering Yelp to identify the defendants, because Hadeed should have been required to do more than articulate a good faith belief that the speech "may be tortious." Indeed, Yelp asserted, the constitution requires "a factual showing, . . . that the statements are actionable and that there is an evidentiary basis for the prima facie elements of the claim." Yelp also argued that the court erred in concluding that the speech at issue did not warrant First Amendment protection because it was defamatory, because that argument begged the question by relying on the defamatory nature of the speech to compel evidence to prove its defamatory nature. Yelp also pointed to the constitutional requirement of proof of fault in defamation cases.

Yelp next argued that, even if Hadeed had made a sufficient showing that the reviewers were not Hadeed customers, the statements were not actionable. The parts of the reviews that Hadeed alleged were false -- the identities of the reviewers -- were not the parts of the reviews that could negatively impact Hadeed's reputation. Under Fourth Circuit precedent, Yelp claimed, "the falsity of a statement and the defamatory ‘sting' of the publication must coincide" for a statement to constitute defamation. And in this case, "Hadeed never allege[d] that the substantive problems set forth in the reviews, such as charging twice the advertised price, [we]re themselves false." Additionally, Yelp argued that Hadeed was libel-proof and could not sue for defamation because, in light of the large number of negative Yelp reviews of Hadeed that were not included in the lawsuit, a few more negative comments "would [not] cause Hadeed any incremental harm."

Yelp finally argued that, if the statements could be actionable, Hadeed had not presented a sufficient factual basis for the subpoena. When a party is "seeking discovery of information protected by the First Amendment," Yelp claimed, it should be required to show that "there is reason to believe that the information sought will, in fact, help its case." Hadeed had failed to make this showing, Yelp stated.

On May 8, 2013, the Reporters Committee for Freedom of the Press, the American Society of News Editors, Gannett Co., and The Washington Post filed a brief in support of Yelp. They argued that: the court should recognize "a heightened standard for compelled disclosure of identities" consistent with a consensus that has developed in the courts; allowing plaintiffs to compel the identity of authors "of any speech that ‘may be tortious' simply based on an unsupported allegation is inconsistent with the First Amendment"; and a "heightened standard is important to news organizations and other Internet publishers in creating a meaningful exchange of ideas on their web sites."

Hadeed filed its appellee's brief on May 30, 2013, arguing that the Virginia statute "clearly meets the minimal constitutional protections required under the First Amendment." But even if the Dendrite test were constitutionally required, Hadeed contended that the test had been satisfied because its complaint had "provided the actual statements, and if the posters are not customers, their statements are defamatory per se." Even under Dendrite, Hadeed argued, it was not required to present "all evidence necessary to survive a tough cross examination, summary judgment, or even . . . a jury verdict." Hadeed claimed it could not present more detailed information rebutting the Yelp reviews because it "serves 35,000 customers per year and its staff encounters all variety of circumstances," and the experiences of its thousands of other customers would not be relevant to "whether one specific person was defrauded through a bait and switch." Hadeed also contested Yelp's argument that it was libel proof, arguing that the many other negative Yelp reviews were not reliable.

Yelp filed a reply brief on June 27, 2013. It asserted that "even apart from the fact that a state statute cannot overrule the requirements of the First Amendment, there is no inconsistency between section 8.01-407.1 and the Dendrite-Cahill line of cases." Under the statute, Yelp claimed, it "is not enough for the plaintiff to show good faith; it must have a ‘legitimate' basis for claiming that the speech was tortious." Yelp argued that Hadeed had "alleged defamation, but ha[d] of yet proved nothing," and pointed out that Hadeed had not filed an affidavit from any employee actually denying that Hadeed engaged in the misconduct alleged in the Yelp reviews.

The Court of Appeals of Virginia, by a vote of two to one, affirmed the trial court's decision on January 7, 2014.

First, the court stated that although anonymous speech is protected by the First Amendment, "defamatory speech is not entitled to constitutional protection." Therefore, the court stated, "if the reviews are unlawful in that they are defamatory, then the [reviewers'] veil of anonymity may be pierced." Further, the court found that the speech at issue was commercial speech, as it was "expression related solely to the economic interests of the speaker and its audience." Because courts have recognized a lower level of First Amendment protection for commercial speech," the court held that the anonymous reviewers' "right to anonymity is subject to a substantial governmental interest in disclosure." In contrast, the court stated, a "business's reputation is a precious commodity."

The court also rejected the argument that the reviews were non-actionable opinion. "Generally," the court stated, "a Yelp review is entitled to First Amendment protection because it is a person's opinion." However, the court explained, this protection "relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, . . . then the review is not an opinion; instead, the review is based on a false statement of fact."

The court next turned to Virginia law. It held that Virginia Code § 8.01-407.1 provided the proper test for uncovering the identity of an anonymous Internet communicator. The court noted that it was "reluctant to declare legislative acts unconstitutional" and ultimately refused to do so, because there was no constitutional infirmity that was "clear, palpable, and practically free from doubt." The court also refused to "adopt persuasive authority from other states," including Dendrite and Cahill, noting that the Virginia legislature had considered that authority and ultimately made its own policy decisions.

In applying the Virginia statute, the court held that Hadeed presented sufficient evidence to show that the reviews were or may have been defamatory by "indicating that it made a thorough review of its customer database" and could not match the defendants' reviews with customers. Further, the court believed that Hadeed acted on a "legitimate, good faith belief that the Doe defendants were not former customers," and "took reasonable efforts to identify the anonymous communicators." Finally, according to the court, the reviewers' identities were "not only important," but "necessary" because "without the identity of the Doe defendants, Hadeed cannot move forward with its defamation lawsuit."

The court also concluded that the trial court properly exercised subpoena jurisdiction over Yelp because Virginia statutes "explicitly allow for service on a registered agent of a foreign corporation that is authorized to do business in the Commonwealth."

Senior Judge James Haley dissented. Judge Haley agreed that Virginia Code § 8.01-407 provided the proper framework for analysis, and stated that correct analysis under the statutory framework properly "balances the First Amendment protection of an anonymous speaker and the right of redress for defamation." However, he concluded that, in this case, "the balance envisioned by [the statute] should weigh for the protection afforded by" the U.S. and Virginia constitutions. Judge Haley noted that Hadeed had not "claimed that any of the substantive statements [we]re false," and, at oral argument, "candidly admitted that it [could] not say the John Doe defendants are not customers." By arguing that the reviewers "may not have been customers, and, if they were not, the substantive statements may be tortious," Hadeed failed to provide sufficient supporting material to justify the subpoena, he asserted. Instead, Judge Haley said, Hadeed's claim was merely "a self-serving argument -- one that proceed[ed] from a premise the argument [wa]s supposed to prove."

Content Type: 

Jurisdiction: 

Subject Area: 

An Increase in Infringement or the Promotion of Censorship? The Growing Tension of VPN Use

In the days of unwarranted government surveillance and elaborate data collection, people increasingly rely on anonymizing services to keep their online activities private, such as proxy servers, encrypted cloud storage, and virtual private networks. Virtual private networks, or VPNs, route online communications through a secure and encrypted private network to a remote server (sometimes in a jurisdiction with greater protection for freedom of speech or weaker law enforcement).

Subject Area: 

Jurisdiction: 

Saltsman v. Goddard

Date: 

10/25/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Alexandria Goddard aka "Prinnie" and anonymous Doe defendants

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

The Court of Common Pleas, Jefferson County, Ohio

Case Number: 

12-CV-00544

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Thomas G. Haren, Jeffrey M. Nye, Marc J. Randazza (Goddard), Scott T. Greenwood (Anonymous commenters), Francesca T. Carinci (Marian Waguespack)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In August 2012, two football players from Steubenville High School were arrested and charged with the rape of a 16-year-old girl. Classmates circulated Twitter posts, videos, and photographs indicating that the players may have carried the girl, unconscious, from party to party and sexually assaulted her while others watched. A police investigation uncovered pictures of the girl, naked and apparently unconscious, from partygoers' phones.

Cody Saltsman, a football player who was not indicted, tweeted a picture of the girl looking unresponsive as two boys carry her by her wrists and ankles. He also tweeted comments about the girl, including the phrases "whore status," "sloppy," and "I have no sympathy for whores."

Alexandria Goddard, a blogger who writes under the pseudonym "Prinnie" at prinniefied.com, wrote a series of blog posts on the case. She posted screen shots of related Twitter posts and photos. She also suggested that a number of unindicted individuals had participated in the rape, including Cody Saltsman. In response to a comment on her blog reading "students by day ... gang rape participants by night," Goddard wrote, "Cody Saltsman [is] playing tonight. Reno, SHAME ON YOU." She also wrote that his fellow football players should "roll on their pal Cody Manson" and "[p]erhaps when scumbag is finally arrested I will post a picture of him for his mother that says ‘How do you like your scumbag son now?' ... Tell Cody not to feel too bad, he is not the lone asshole in all this."

A number of commenters on the blog also posted about Saltsman, including statements that he was there when the rape was occurring, that he was the "mastermind" behind the crime, that he had previously stated he would "ruin that bitch," and that he had sent the victim's father the picture of her being carried by her wrists and ankles with text reading "look at your whore daughter now." Other commenters made comments including: "[g]et CS and his posy [sic] off the field and problem solved"; "Cody needs to suffr some consequences too!"; and, in response to the question "[w]hat is [the Saltsman's] business because I never want to spend money there," the statement "CS father owns Fort Steuben Plumbing/Maintenance."

On October 25, 2012, Saltsman and his parents, James and Johna Saltsman, filed a complaint against Goddard, fifteen anonymous commenters identified by screen names and Internet Protocol (IP) addresses (including those who made the above statements), and ten additional John Doe defendants. Saltsman sued for defamation and intentional infliction of emotional distress, and sought injunctive relief, compensatory damages in excess of $25,000, and punitive damages. The complaint was amended on November 19, 2012 to add claims for false light and spoliation of evidence.

Saltsman's attorneys obtained the IP addresses for each anonymous commenter from HostGator, the Internet Service Provider (ISP) for the "prinnified" blog, which apparently turned over the IP addresses without providing notice to the commenters or to Goddard. On November 16, the plaintiffs moved for authorization to conduct discovery from each anonymous commenter's ISP in order to obtain the commenters' identities.

Goddard's counsel objected to Plaintiffs' motion for authorization to conduct discovery to obtain the identities of the anonymous defendants, asserting that the First Amendment right to speak anonymously barred such discovery.

In a supplemental memo supporting the motion for authority to conduct discovery, Saltsman disputed that the First Amendment protected the identities of the authors, urged the court to act quickly in order to prevent the ISPs from deleting relevant information, and argued that Goddard had no standing to object on behalf of the Does.

Acknowledging that there were no published Ohio decisions on point, Saltsman directed the court to the often-followed test laid out in Dendrite Int'l Inc. v. Doe No. 3. 775 A.2d 756 (N.J. Super. A.D. 2001). Under Dendrite, courts allow plaintiffs to conduct discovery on anonymous online posters' identities when plaintiffs (1) attempt to notify defendants that their identities are being sought and explain how to present a defense; (2) quote verbatim the allegedly actionable online speech; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation; and (5) show that, on balance and in context, the plaintiff's right to identify the speaker in order to redress alleged wrongs outweighs the First Amendment right to anonymous speech. Saltsman asserted that he met all of these elements, particularly focusing on the fifth element, the balancing of rights. Because the First Amendment does not protect false assertions of fact, he argued, the defendants had no right to anonymous speech in this context.

Goddard filed a Memorandum in Opposition to the motion on November 21, and a supplemental Memorandum in Opposition on November 26. Plaintiffs' responded with a second supplemental memorandum in support of their motion on November 28.

The Court filed an order on November 29, granting the plaintiffs' motion. The court authorized the relevant ISPs to release personally identifiable information associated with the IP addresses identified in the complaint. The court required that notice of the discovery be given to the anonymous commenters and that the commenters be given fourteen days after the notice to file motions to quash.

On December 14, the American Civil Liberties Union of Ohio stated in a press release that they had offered to represent a number of the "John Doe" defendants. ACLU Volunteer Attorney Scott Greenwood stated, "[w]e believe the real goal of this lawsuit is to discover the identity of anonymous online commenters so that they, and future commenters will be intimidated and discouraged from voicing their opinions. This is just an updated form of a classic Strategic Lawsuit Against Public Participation (SLAPP) which is typically used to silence speech that is protected under the First Amendment."

Plaintiffs reached a settlement with Goddard and the anonymous commenters and voluntarily dismissed the case with prejudice on December 27, 2012. With one exception (defendant Waguespack), the identities of the commenters were not disclosed. No money was exchanged, and Goddard did not retract any statements or agree to stop covering the case. Goddard did write on her blog that she "never had any evidence of [Cody Saltsman's] direct involvement" in the events of the night and agreed to give him space on her blog to present his side of the story.

The "prinnified" blog also ran the following statement from Cody Saltsman: "I deeply regret my actions on the night of August 11, 2012. While I wasn't at the home where the alleged assault took place, there is no doubt that I was wrong to post that picture from an earlier party and tweet those awful comments. ... At no time did my family mean to stop anyone from expressing themselves online - we only wanted to correct what we believed were misstatements that appeared on Ms. Goddard's blog. "

Content Type: 

Jurisdiction: 

Subject Area: 

Jacobson v. "Almostinnocentbystander"

Threat Type: 

Lawsuit

Date: 

04/23/2012

Party Receiving Legal Threat: 

Anonymous user "almostinnocentbystander"

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

First Judicial District, State of Idaho, Kootenai County

Case Number: 

CV-2012-0003098

Legal Counsel: 

Joel Hazel & Duane Swinton, Witherspoon Kelley (for Cowles Publishing Co., d/b/a The Spokesman-Review)

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Pending

Description: 

On Febraury 14, 2012, Republican presidential nominee Rick Santorum spoke at an event in Coeur d'Alene, Idaho. The Kootenai County Republican Chair, Tina Jacobson, was present at the event and appeared on the stage with Santorum.

The blog Huckleberries Online – which is operated by the Spokesman-Review, owned by the Cowles Publishing Company – covered the event through a blog post with gathered Twitter messages from reporters at the event. According an affidavit filed by the plaintiff, in the comments field following the blog post, a user by the name of "almostinnocentbystander" made the following comment:

Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina's blouse??? Let's not try to find out.

A user by the name of "Phaedrus" then replied, "[m]issing funds? Do tell." User "OutofStaterTater" posted. "Yes, do tell, Bystander. Tina's missing funds at the local GOP, Sheriff Mack, and John Birch Society are coming to town, things are getting interesting around here." Almostinnocentbystander replied:

@Phaed - the treasury has gone a little light and Mistress Tina is not allowing the treasurer report to go into the minutes (which seems common practice). Let me rephrase that ... a whole Boat load of money is missing and Tina won't let anyone see the books. Doesn't she make her living as a bookkeeper? Did you just see where Idaho is high on the list for embezzlement? Not that any of that is related or anything . . . 

The timestamps on the comments were between 3:31pm and 5:25pm. According to the affidavit of Daniel Olivera, manager of the Huckleberries Online blog, the posts by almostinnocentbystander, Phaedrus, and OutofStaterTater were removed around 6pm that day. Mr. Olivera posted the following two days later:

On Tuesday, Huck's online poster almostinnocentbystander made a baseless allegation against Tina Jacobson, Chairwoman of the Kootenai County Republican Central Committee. I deleted that post and three others that referred back to it as soon as I saw them. I also informed almostinnocentbystander that posting privileges at Huck's online have been revoked. In response today, almostinnocentbystander e-mailed this: 'I apologize for and retract my derogatory and unsubstantiated commentary regarding Tina Jacobson.' Huck's online commenters should feel free to flag posts they think are inappropriate -- DFO.

On April 23, 2012, Jacobson filed a complaint in the District Court of the First Judicial District of Idaho, Kootenai County, alleging libel based on the statement made by "almostinnocentbystander." On April 25, Jacobson issued a subpoena duces tecum to Cowles Publishing, seeking the identifying information for "almostinnocentbystander" as a defendant, and "Phaedrus" and "OutofStaterTater" as third-party witnesses. Cowles Publishing filed a motion to quash the subpoena on May 11, arguing that the plaintiff has failed to meet the anonymous speech disclosure standards set forth in Dendrite Int'l v. Does, Doe v. Cahill, and the U.S. District Court for the District of Idaho's S 103, Inc. v. Bodybuilding.com, LLC. Cowles also argued that disclosure in this case would violate Idaho's common law reporter's privilege.

On May 21, 2012, Jacobson responded to the motion to quash. Jacobson argued that Cowles could not take advantage of the state's reporter's privilege law because the company was acting as an Internet service provider, and not as a newspaper, with respect to the Huckleberries Online blog. Jacobson further argued that the commentators had waived their rights by violating the Huckleberries Online terms of service, which instruct users to not post defamatory material, and that the Dendrite test is met, because the comments were defamatory per se. 

On May 29, 2012, Cowles replied to Jacobson's response, asserting again that the statements at issue were protected opinion, that Jacobson is a public figure and thus must also show actual malice, and that Olivera's subsequent investigation into the comments made by "almostinnocentbystander" were subject to protection under the reporter's shield law.

On July 10, 2012, Judge Patrick Luster denied the motion to quash as to "almostinnocentbystander." The court opted to apply the standard for disclosure of anonymous commentators set forth in S 103, Inc., which requires that the plaintiff (1) make reasonable efforts to notify the defendant of a subpoena, (2) demonstrate that the plaintiff would survive a summary judgment motion, and (3) that the court balance the anonymous poster's First Amendment right of free speech against the strength of the plaintiff's case. The court found that Jacobson had made reasonable efforts to notify all three commentators. On the sufficiency of Jacobson's pleadings, the court found first that Jacobson was a public figure for purposes of the lawsuit. Second, the court found that the allegation of a missing $10,000, paired with the almostinnocentbystander''s retraction showed the requisite fault. The court further found that the balance of interests favored disclosure, because "the First Amendment does not protect defamatory speech."

In contrast, the court found that Jacobson had not met the burden for disclosure as to "Phaedrus" and "OutofStaterTater," and accordingly quashed the subpoena as to those parties.

The court ordered Cowles to comply with the subpoena as to "almostinnocentbystander" within fourteen days.

Content Type: 

Subject Area: 

CMLP Notes: 

7/16 AFS created

Jurisdiction: 

Hoang v. Amazon.com, Inc.

Date: 

10/13/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Amazon.com, Inc., IMDb.com, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

Western District of Washington at Seattle

Case Number: 

2:11-CV-01709-MJP

Legal Counsel: 

Ashley A. Locke, Breena Michelle Roos, Charles Christian Sipos, Elizabeth L. McDougall-Tural

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Junie Hoang, the stage name of Asian actress Huong Huang, filed an anonymous "Jane Doe" complaint in the Western District of Washington against the Internet Movie Database website, IMDb.com, and its parent company, Amazon.com, on October 13, 2011.

Hoang, who lives in Texas, has been a user of IMDb.com since 2003 and a subscriber to IMDbPro since 2008. She was using the services to help her connect with casting directors and to obtain acting roles. She did not put her age in her profile, but alleges that IMDb.com included it at a later point in time. She alleges that IMDb.com "took the personal information she provided during the subscription process [from her credit card] and added it to her online profile without her authorization." She also alleges that IMDb.com "scour[ed] public records" to discover her date of birth. She asked for her birthdate to be taken down, but IMDb.com has refused.

Hoang alleges that revealing her true name and age on IMDb.com has harmed her career because "in the entertainment industry, youth is king." Hoang was 40 years old at the time of filing. In addition, she alleges a "double-whammy effect" because she cannot get "forty-year-old roles" because she looks younger than she is and cannot portray the role of a forty-year-old woman.

In her complaint, Hoang alleges four causes of action:

  1. Breach of contract (of IMDbPro's Subscriber Agreement and incorporated Privacy Policy);  
  2. Fraud;
  3. Violation of Washington Privacy Act, RCW 9.73.030; and
  4. Violation of Washington Consumer Protection Act, RCW 19.86.

She included Amazon.com in her complaint because she alleges that the company "aided and abetted IMDb's wrongful conduct," and was aware of IMDb's procedures of cross-referencing credit card information with public records to gather as much information as possible about each subscriber. She sought an injunction to remove her personal information from IMDb, as well as $75,000 in comensatory damages, $1 million in punitive damages, and an award of costs and fees.

On November 9, 2011, defendants responded with two Motions to Dismiss: one pursuant to Rule 12(b)(6), failure to state a claim; and another pursuant to Rule 10(a), arguing that "Jane Doe" should not be able to proceed anyonymously. On the Rule 12(b)(6) motion, Amazon and IMDb argued that the display of the birthdate was "an accurate fact," and that Doe's claims about IMDb's practices were "pure speculation." The defendants also noted that even if Doe's claims were true, "plaintiff consented to such use of information when she subscribed to the IMDbPro service." 

On November 28, 2011, plaintiff filed oppositions to defendant's Rule 12 (b)(6) motion and Rule 10(a) motion, and simultaneously filed a cross-motion to proceed anonymously due to the "unique circumstances" in the case. Plaintiff argued that she should be allowed to proceed anonymously because disclosure of her identity would subject her to "severe retaliation, harassment and ridicule," including retaliation by defendants, who she claims "have a reputation of striking back at consumers who complain about their unauthorized publication of personal information." 

Defendants filed replies in support of their motions on December 2, 2011. They argued in regards to the 12(b)(6) motion that the plaintiff had failed to meet her burden of specific factual allegations sufficent to state a claim, and that each of her causes of action fail independently. In their reply pursuant to the 10(a) motion, defendants argued that plaintiff's arguments did not justify anonymity in this case, while also denying that they had ever "retaliated against [p]laintiff (or anyone else) for complaining regarding its practices." Amazon also claimed that "embarrassment does not meet the strict standards for anonymity." 

On December 23, 2011, the Washington district court judge in Seattle granted the defendant's motion to dismiss on Rule 10(a) grounds.  The court said "the injury [plaintiff] fears is not severe enough to justify permitting her to proceed anonymously. " The judge granted leave to "Jane Doe" to amend her complaint by adding her real name within 14 days of the order. 

On January 6, 2012, "Jane Doe" filed an amended complaint using her real name, Huong Huang.

On March 30, 2012, a federal district court judge ruled on the Rule 12(b)(6) Motion to Dismiss. Taking plaintiff's factual allegations as true, the court granted in part and denied in part defendants' motion.

  1. Breach of Contract. The court held that Huang's breach of contract claim was sufficient to survive the motion to dismiss stage. Plaintiff alleged an existence of a contractual duty and a breach of that duty. The court said the "plain language of the contract does not permit defendants unfettered use of the personal information that Plaintiff provided for the purposes of processing payment."
  2. Fraud. In regards to the fraud claim, the court held that Huang's claim failed because it did not meet the high standard of specificity requirements of Rule 9(b). This claim was dismissed with leave to amend with "the requisite standard of particularity."
  3. Washington's Privacy Act. Plaintiff's privacy claim also failed because it misapplied the Washington statute. The information was not "private" and was not "intercepted" or "recorded" by defendants, as required by the statute.  This claim was dismissed with prejudice.
  4. Washington's Consumer Protection Act. The Consumer Protection Act claim was also allowed to survive at the motion to dismiss stage. The court found that "defendants' alleged practices" could affect millions of people if plaintiff's allegations of IMDb.com's unfair and deceptive practices are true. 

On April 25, 2012, Huang filed a Second Amended Complaint (SAC), addressing the specificity in her fraud claim. In her SAC, Huang argues that defendants were engaged in data-mining, and that they "materially misrepresent...the safety, security and purposes for which they gather and use the personal and credit card information of consumers who subscribe to IMDbPro." She claims she would not have shared her credit card information if she knew the defendants would use "such information for other purposes." (The plaintiff and defendants disagree as to which documents represent the operative agreements in this matter.) Huang also adds a new claim about Amazon.com. She alleges that she purchased products from Amazon.com prior to subscribing to IMDbPro and  that "Amazon.com misrepresented in the Privacy agreement available on its website the terms on which Amazon.com would share her user information with IMDb.com."

After Huang filed her second amended complaint, defendants filed another Motion to Dismiss pursuant to Rules 12(b)(6) and 9(b) on May 9, 2012. In it, defendants argue that plaintiff's new claim about Amazon.com's Privacy Notice is a "thinly veiled attempt to keep Amazon.com in this lawsuit." Defendants also argue that plaintiff's SAC "comingles" defendants and fails to distinguish between Amazon.com and IMDb.com, as required for a state claim for fraud. They claim that plaintiff still does not specify "which statements are false, which statements IMDB.com knew were false and intended plaintiff to rely on, and which statements she had a right to rely on."  

Huang filed an opposition to the Motion on May 21, 2012, and defendants replied to the opposition on May 25, 2012.

On June 1, 2012, Huang filed a Motion for Relief from Trial Deadlines and to Continue Trial Dealines alleging defendants did not file substantial answers to her complaint and/or raise substantial defenses. The plaintiff also claims both parties have been "embroiled" in discovery disputes because Amazon claims to be exempt from full discovery. Defendants filed an Opposition to that motion on June 13, 2012, alleging that plaintiff was delaying her own responses to discovery and had failed to respond to efforts to negotiate a "mutally acceptable protective order." On June 15, 2012, Huang filed a Reply in support of her Motion for Relief from Trial Deadlines and to Continue Trial Date.  

The plaintiff and defendants asked the Court to enter a Stipulated Protective Order regarding discovery on June 28, 2012. 

 

Content Type: 

Subject Area: 

Jurisdiction: 

Art of Living Foundation v. Does 1-10

Date: 

11/05/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John or Jane Doe ("Skywalker"), John or Jane Doe ("Klim")

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, N.D. California, San Jose Division

Case Number: 

10–CV–05022–LHK

Legal Counsel: 

Joshua Koltun

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Settled (partial)

Description: 

Substantive Proceedings

The Art of Living Foundation is an international nonprofit organization that, according to its website, is "engaged in stress-management and service initiatives." Two former followers, Skywalker and Klim, published anonymous blogs (entitled "Leaving the Art of Living" and "Beyond the Art of Living") criticizing the Art of Living's practices and their leader, Sri Sri Ravi Shankar. In addition to their critiques, they also provide excerpts from the Art of Living's teaching manuals and other materials (normally provided to members in courses for a fee).

On August 14, 2010, Skywalker and Klim received a demand from Art of Living (from its headquarters in India) to take down this material. The branch of Art of Living in the United States (based in California) also filed a complaint on November 5, 2010, in the U.S. District Court for the Northern District of California. Art of Living alleged copyright infringement under federal law for the blogs' publication of portions of the "Breath Water Sound Manual." In addition, Art of Living alleged misappropriation of trade secrets, defamation, and trade libel under California law, based on the aforementioned publication and the Does' critical statements about the organization.

On January 31, 2011, the Does filed a motion to dismiss the defamation and trade libel claims for failure to state a claim. They also filed a special motion to strike the defamation, trade libel, and trade secrets claims under California's anti-SLAPP statute. Art of Living filed both an opposition to the motion to dismiss and an opposition to the motion to strike on March 17, 2011, to which the Does replied (reply re: motion to dismiss; reply re: motion to strike) on April 6, 2011. After a hearing in May, on June 15, 2011, U.S. District Judge Koh dismissed the defamation and trade libel claims and denied (without prejudice) the motion to strike. Judge Koh found that the statements at issue were opinions rather than assertions of fact, resolving the defamation claim, and that Art of Living did not sufficiently allege harm or damages for the trade libel claim. Judge Koh also held that discovery on the trade secrets claim could not proceed until Art of Living identified the trade secrets with reasonable particularity.

On July 14, 2011, Art of Living proceeded to amend their complaint in accordance with the June 15th order, removing the dismissed claims from their complaint. Art of Living also provided further detail and content identification in regards to the remaining copyright infringement and trade secrets claims. The Does answered the amended complaint on July 28, 2011.

The Does then filed a second special motion to strike on September 12, 2011 (with the redacted version entering the docket on January 9, 2012), this time directed at the remaining trade secret claim. This motion was opposed by Art of Living on September 29, 2011. Additionally, on September 27, 2011, the Does filed a motion for summary judgment on the copyright infringement claims. Art of Living filed an opposition to this motion on October 11, 2011, which the Does replied to on October 24, 2011. 

In an order on May 1, 2012, Judge Koh granted summary judgment on the copyright infringement claim. Judge Koh found that Klim was entitled to summary judgment based on noninfringement, and that Art of Living did not provide enough support for its claim of authorship of the manual to pursue a copyright infringement claim against Skywalker because the copyright registration certificate was obtained after the litigation began). The district court also granted Klim's motion to strike the trade secrets misappropriation claim while denying the motion to strike in regards to Skywalker. While Skywalker conceded that there was at least some overlap between his blog postings and the materials Art of Living designated as trade secrets, Art of Living presented no evidence that Klim misappropriated any of these materials.

Anonymity in Art of Living v. Does

Throughout the proceedings described above, there was an ongoing issue with respect to the defendants' ability to proceed anonymously.

On November 9, 2010, Art of Living filed a motion for leave to take expedited discovery. Pursuant to an ex parte order by Magistrate Judge Beeler, on December 20, 2010, Art of Living subpoenaed Google and Wordpress to reveal the identities of bloggers Skywalker and Klim. Not long after being notified of this by Google, the Does filed a motion to quash the subpoena. In response, Art of Living filed an opposition on March 22, 2011, and the Does replied on April 28, 2011. On August 10, 2011, Magistrate Judge Lloyd denied the motion to quash in regards to Skywalker's claim while granting it for Klim, finding that the copyright claim was a sufficient basis for permitting identification of Skywalker.

In response, on August 24, 2011, Skywalker filed a motion for relief from the order of the Magistrate Judge regarding the motion to quash. On August 31, 2011, Public Citizen, joined by the Electronic Frontier Foundation and the ACLU, submitted an amicus brief. This brief urged the court to apply the balancing test adopted in Dendrite Int'l v. Does, despite the copyright claim being considered in the case. Art of Living's opposition to the motion for relief was filed on September 16, 2011, and Skywalker replied on September 30, 2011.

On November 9, 2011, Judge Koh granted the motion, finding that Skywalker's First Amendment right to anonymous speech outweighed Art of Living's need for discovery at this time. Judge Koh applied the Highfields Capital two-part test (which relied heavily on Dendrite) for determining whether to allow discovery seeking the identity of an anonymous defendant: "(1) The plaintiff must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the plaintiff makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in favor of the defendant."

In a case management conference and corresponding minute order on May 9, 2012, Judge Koh again denied all of Art of Living's motions to disclose Skywalker's identity. By also refusing to extend discovery a setting the trial date and length, these rulings potentially allowed Skywalker to defend at trial anonymously.

Related Case and Settlement

On June 8, 2012, Judge Koh granted Art of Living's motion to relate Art of Living Foundation v. Eng-An Chou (Docket no. 5:12-CV-02748-LHK) to this case. Chou involves Art of Living's claim that Eng-An Chou breached her contracts with Art of Living by disclosing some of the organization's confidential texts to Skywalker for posting on his blog.

The next week, the cases were referred to Judge Joseph C. Spero for a Magistrate Judge Settlement Conference. The conference was held on June 12, 2012 and a settlement was reportedly reached. As part of the settlement agreement, Skywalker and Klim published a joint statement informing readers of the settlement and would proceed to freeze their blogs on June 19, 2012. The joint statement noted that there are no restrictions on the Does to create new blogs, and that no identity had or would be disclosed in relation to this litigation and settlement. Art of Living also agreed to drop the lawsuit with prejudice (also dropping the separate suit against Chou) and to pay Skywalker and Klim's attorney's fees.

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Jurisdiction: 

Britain's New Libel Bill: Better on Libel Tourism, But Worse on Anonymous Online Speech

Britain's effort to reform its defamation laws and shed London's title of "libel capital of the world" has been chugging along for several years, but now it looks like it's in sight of the last stop: The government unveiled its proposed new defamation bill in early May.  So what has all this time and effort wrought?

Subject Area: 

Jurisdiction: 

Brown v. Doe

Threat Type: 

Lawsuit

Date: 

03/27/2012

Party Receiving Legal Threat: 

John or Jane Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Clark County District Court, Nevada

Case Number: 

A-12-658911-C

Legal Counsel: 

Tony L. Abbatangelo

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On March 27, 2012, Mary and Phil Brown filed suit in Nevada state court against an annonymous online commenter. According to news reports, a commenter on the Las Vegas Review-Journal's website posted allegedly defamatory statements about the plaintiffs' romantic history. The Browns instituted the defamation action and subpoenaed the Review-Journal for the commenter's identity.

On April 6, Doe, through an attorney, filed a motion to quash the subpoena. Doe argues that the court should apply the Dendrite test to determine whether Doe's identity should be revealed. According to the motion to quash, the Browns failed to meet the first three prongs of the Dendrite test by failing: (1) to make reasonable attempts to contact Doe; (2) to allege the specific defamatory statements at issue; and (3) to allege a prima facie case that could withstand summary judgment by failing to demonstrate that the comments were made negligently. In arguing that Doe's contested post was not written negligently, Doe alleges that the post was written based on information from individuals with knowledge of the Browns' relationship history. Finally, under the fourth Dendrite prong—a balancing test between the parties' rights—Doe argued that the Browns had suffered little if any harm from the comment, and that the Review-Journal's comment sections were so filled with "nonsensical comments" that no reader would take them seriously. 

Content Type: 

Subject Area: 

CMLP Notes: 

4/20/12: JS creating

Jurisdiction: 

Guadagnini Violin Shop v. TruthTeller1790

Date: 

01/23/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Eric Swanson, a.k.a. TruthTeller1790

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court for Cook County, Illinois

Case Number: 

2012-L-000802

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On January 23, 2012, the Guadagnini Violin Shop (the "Shop") and owner Chunyee Lu filed suit in Illinois state court against a then-anonymous online reviewer. The complaint alleged that on January 21, 2011, a person using variations on the screen name "TruthTeller1790" posted negative reviews of the Shop on multiple user-review sites, including Yelp and Kudzu. All of the reviews were posted from the same IP address. Plaintiffs attached copies of the contested reviews to the complaint, and alleged that the reviews contained numerous libelous statements, such as allegations that Guadagnini Violin Shop performed unnecessary repairs and sold overpriced and falsely-identified instruments.

The complaint alleged counts of defamation (per se and per quod), false light, and tortious interference, and sought money damages.

On February 7, 2012, plaintiffs filed an amended complaint, identifying Eric Swanson as "TruthTeller1790." According to the amended complaint, plaintiffs traced the IP address linked to the reviews to cable provider RCN Corporation, which identified Swanson as that address's subscriber. The amended complaint alleged that Swanson operated a competing Chicago violin shop.

In addition to the original four counts of defamation, false light, and tortious interference, the amended complaint added counts of violations of Illinois' Consumer Fraud and Deceptive Business Practices Act, its Uniform Deceptive Trade Practices Act, and a common-law trade disparagement claim. The amended complaint also added requests for punitive damages.

Content Type: 

CMLP Notes: 

3/23/2012: JS creating

Jurisdiction: 

Subject Area: 

Ron Paul Campaign Gets a Lesson on Civil Liberties

Ron Paul's presidential campaign has been having a rough go of it: He has yet to win a Republican state primary or caucus.  But now his campaign's also-ran streak extends into the courtroom too, in a victory for the right to anonymous free speech.

Jurisdiction: 

Subject Area: 

Content Type: 

The Curious Case of the D.C. District's Anonymity Orders

Magnifying glass and reflection by ◄bl►

Just before Christmas 2011, a federal magistrate working under D.C. District Court issued a… curious ruling. The case is Hard Drive v. Does 1-1,495, another one of these mass-joinder copyright-infringement cases. I recommend hitting that link for the full story, but here's the basic sketch:

Subject Area: 

Jurisdiction: 

Hard Drive Productions v. Does

Threat Type: 

Lawsuit

Date: 

09/27/2011

Party Receiving Legal Threat: 

Does 1-1,495

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Columbia

Case Number: 

1:11-cv-01741-JDB-JMF

Legal Counsel: 

Lewis Brisbois Bisgaard & Smith, LLP (John J. Michels , Jr.); Dunner Law, PLLC (Adam W. Sikich); Kelly Law Firm, LLC (Aaron M. Kelly)

Publication Medium: 

Other

Relevant Documents: 

Status: 

Pending

Description: 

On September 27, 2011, adult-film company Hard Drive Productions filed a lawsuit in federal court against 1,495 anonymous defendants. The complaint alleged that the defendants were all involved in transferring one of Hard Drive's copyrighted films through the file-sharing protocol BitTorrent. Hard Drive alleged one count of copyright infringement, and included a list of the IP addresses allegedly involved in the BitTorrent transfers.

Hard Drive then moved for expedited discovery, in order to subpoena the relevant Internet Service Providers for the identities of the parties linked to the IP addresses. The district court granted Hard Drive's motion and allowed the company to subpoena the ISPs.

Over the following month, the district court received three anonymous motions to quash or modify the subpoenas. On November 2 District Court Judge Bates denied the anonymous motions on the basis of local court rules requiring filings to contain full identifying information. Judge Bates further stated that the anonymous defendants could re-file their motions under their true names, and those motions (and their identities) would be kept under seal from both the plaintiff and the general public, even if the motions eventually failed. Judge Bates also stayed the subpoenas because the anonymous motions raised "substantial issues."

On November 10, Judge Bates issued an order clarifying the procedure by which the defendants' filings would be placed under seal from the plaintiff.

On November 16, Judge Bates referred the case to Magistrate Judge Facciola. On November 28, the Magistrate Judge issued to counsel a notice of the case's assignment.

On November 22 and 23, the court received a pair of motions under seal, accompanied by publicly accessible notices of those filings. One of these notices mentioned that the sealed motion included arguments regarding personal jurisdiction, Rule 45(c)(3)(A), and misjoinder, along with a motion for a protective order. According to one of the notices, the defendants provided Hard Drive with copies of the motions, redacted to remove all personally identifying information.

On November 30, one of the anonymous defendants was dismissed from the case.

On December 2, four defendants, using their real names, filed motions to quash and/or to dismiss. It is unclear whether any of these identified defendants had previously filed anonymously. The four motions, three of which were filed pro se, made slightly different arguments: one claimed to have been away from home when the alleged copyright infringement took place; one made an argument based on the availability of the sought-after information; one argued that the infringement must have happened on the defendant's unsecured WiFi network; the last motion described the allegedly-abusive series of lawsuits filed by the plaintiff, and argued that joinder of all 1,495 defendants was improper.

On December 13, notice of another sealed motion to quash was filed.

On December 21, the Magistrate Judge Facciola refused to docket any anonymously filed motions to quash. He divided the moving defendants into four categories: 1. Those using their real names; 2. Those remaining totally anonymous; 3. Those using only their IP addresses; and 4. Those filing under seal pursuant to Judge Bates's order. The motions filed by defendants using their real names were docketed. Motions filed by defendants who either remained totally anonymous or used only their IP address as identification were rejected, and those defendants were given a February 1 deadline to re-file under their real names. Finally, motions filed under Judge Bates's order (sealing the motions from the plaintiffs) were also rejected. Magistrate Judge Facciola gave these defendants two choices: they could withdraw their motions to quash, thus remaining anonymous "at this point"; or, they could choose to have their motions filed on the public docket, where the "plaintiff and anyone else who accesses the public docket will [be able to] know who they are." These defendants were given until February 1 to decide which option to choose.

Magistrate Judge Facciola acknowledged that these defendants had "justifiably" relied on Judge Bates's order permitting the motions to be sealed from the plaintiffs. The Magistrate Judge "concluded, however, that no one will be permitted to proceed any further in this case without identifying himself or herself," and stated that "I will not consider any motion unless it is publically filed." In support of this conclusion, Magistrate Judge Facciola stated that "[i]ndividuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information." He cited three cases in support of his conclusion: U.S. v. Christie, 624 F.3d 558, 573 (3rd Cir. 2010); Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001); and Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577, 736 F. Supp. 2d 212, 216 (D.D.C. 2010).

On January 5, 2012, Hard Drive filed a set of responses to the four defendants who had previously filed motions under their real names. The content of the responses varied depending on the defendant, but all four contained the same standing argument: that only the ISPs, as the parties to which the subpoenas were directed, had standing to challenge the subpoenas. Hard Drive argued that if a party is neither the target of the subpoena, nor possess the sought-after documents, that party lacks standing to challenge the subpoena. Hard Drive noted that all four defendants may be eligible for an exception under Fed. R. Civ. P. 45(c)(3)(A)(iii), which, according to Hard Drive, applies if a party "claims a personal right or privilege" in the information sought by the subpoena. According to Hard Drive, however, each of the four defendants had failed to claim this personal right.

On January 20, Hard Drive dismissed nine more anonymous defendants.

Content Type: 

Subject Area: 

Jurisdiction: 

CMLP Notes: 

1-27-2012: Sharkey finished with entry

Ron Paul 2012 v. Does 1-10

Threat Type: 

Lawsuit

Date: 

01/13/2012

Party Receiving Legal Threat: 

John Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

CV-12-00240

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

On January 13, 2012, Ron Paul's presidential campaign organization sued anonymous YouTube users in federal court over a video posted on YouTube by user "NHLiberty4Paul" on January 4, 2012. The video is critical of then-Republican presidential candidate Jon Hunstman, focusing on Huntsman's ambassadorship to China. It concludes by suggesting that viewers vote for Ron Paul instead.

The complaint alleges that the video was created by parties opposed to Paul's presidential campaign, and was "deliberately calculated" to harm Paul's reputation by attaching his name to a "malicious" and "offensive" video. It further states that the video is "a classic case of dirty politics," and that Paul's campaign has absorbed "scathingly negative" media attention from news outlets that believed the video originated from the Paul campaign. The complaint alleges two counts of infringement of the Paul campaign's unregistered trademark in the name "Ron Paul" under 15 U.S.C. 1125(a), and a count of defamation. The campaign seeks monetary damages, the removal of the video, and injunctions against future use of the "Ron Paul" mark.

On January 18, the Paul campaign applied for expedited discovery to identify the YouTube users who posted the video. The application argues that the case cannot proceed until the defendants are identified, thus warranting expedited discovery on this point. The campaign seeks documents both from YouTube and from Twitter, where an account also called "NHLiberty4Paul" exists. Paul's campaign manager, Jesse Benton, also filed a declaration (scroll down) stating that the Paul campaign did not produce the Huntsman video.

UPDATE:

On January 25, a magistrate judge denied without prejudice the campaign's motion for expedited discovery. The magistrate applied the test from Columbia v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), which requires plaintiffs to (1) identify the anonymous persons with some specificity; (2) describe all other attempts the plaintiff has made to find the anonymous persons; (3) show that the lawsuit could survive a motion to dismiss; and (4) show a "reasonable likelihood" that the anonymous persons could be identified through discovery. Since the Paul campaign's motion did not address these factors, the magistrate denied it but invited the campaign to refile with the appropriate information. 

On January 27, Public Citizen, the Electronic Frontier Foundation, the American Civil Liberties Union, and the Digital Media Law Project filed a motion for leave to file an amicus brief in the case, urging the court to clarify the order of January 25th and impose the standard first articulated in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. 2001). This standard requires (1) plaintiffs to provide reasonable notice to potential defendants and an opportunity for defendants to defend their anonymity before issuance of a subpoena; (2) plaintiffs to allege with specificity the speech that has allegedly violated the plaintiff's rights; (3) the court to ensure that the claim states a cause of action upon which relief can be granted as to each statement and against each defendant; (4)  plaintiffs to produce evidence supporting each element of its claims; and (5) the court to weigh the potential harm to the plaintiff from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.

On February 1, 2012, the court granted the motion to file an amicus brief, and instructed the Paul campaign to address the arguments raised by the amici if they decide to refile a motion for expedited discovery.

On February 12, 2012, the Ron Paul Campaign filed a revised application for expedited discovery. The court invited the amici Public Citizen, the Electronic Frontier Foundation, the American Civil Liberties Union, and the Digital Media Law Project to file a memorandum addressing the revised application. The amici filed a memorandum on February 22, 2012. On February 29, 2012 the Ron Paul campaign committee filed a reply brief.

On March 8, 2012, the court again denied the campaign's motion for expedited discovery.  The judge declined to determine which test, Seescandy.com or Dendrite, applied in the case, and instead looked to the common factor in both tests: whether the plaintiff had "filed a valid complaint so the Court can be assured that the alleged claims will withstand a motion to dismiss."  The court ruled that the Paul campaign had not, writing that its arguments failed to connect the YouTube video to a commercial venture as required by the Lanham Act.  As such, its trademark claims failed to overcome the first hurdle in both tests, and no further decision as to which test applied was needed. 

Having decided that the federal causes of action failed to state a claim, the court declined to grant expedited discovery on the basis of the remaining state-law defamation claim.  The court also noted that if the Lanham Act claims were dismissed, "issues develop" over the court's ability to exercise supplemental jurisdiction over the state law claims.

Content Type: 

Subject Area: 

Threat Source: 

RSS

CMLP Notes: 

1/20/12: Sharkey created

1/23/12: JH editing

2/7/12: AS edits

3/8/12: AB edits

3/15/12: AS added some interlocutory docket entries

Jurisdiction: 

Live Tweeting from the ‘Restaurant of Broken Dreams’

When web developer Andy Boyle overheard a couple discussing their marital woes in a Burger King in Boston on Nov. 7, he immediately recognized the entertainment value and began tweeting a play-by-play.

Jurisdiction: 

Subject Area: 

Content Type: 

Admission Consultants, Inc. v. McGraw Hill Publishing Co.

Threat Type: 

Lawsuit

Date: 

08/22/2007

Party Receiving Legal Threat: 

McGraw Hill Publishing Co.; McGraw Hill News Bureaus

Type of Party: 

Organization

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

New York Supreme Court

Case Number: 

Index No. 111503/07

Legal Counsel: 

No appearance

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

Admission Consultants, Inc. petitioned the New York Supreme Court to order McGraw Hill, publishers of the BusinessWeek "B-School" forums, to disclose the registration information of several BusinessWeek forum posters.  The posters allegedly defamed Admission Consultants in their posts.

On October 3, 2007, the New York Supreme Court ordered the disclosure of the posters' identities.  McGraw Hill disclosed the required information.  Two of the forum users had registered using Google's Gmail service, leading Admission Consultants to seek the identities of those users in a separate action.

Subject Area: 

Content Type: 

Priority: 

2-Normal

Jurisdiction: 

CMLP Notes: 

Source: Paul Levy of Public Citizen, via Phil Malone

Threat Source: 

Public Citizen

At the Intersection of Anti-SLAPP and Anonymity

Slap! by Vermin Inc, on Flickr

Consider two cases: In Colorado, clothing company Façonnable is attempting to sue an anonymous Wikipedia editor (or, possibly, more than one; the number is sort of up in the air) over some unflattering edits to the company's Wikipedia page. But first, Façonnable has to figure out who the editors are--thus, a subpoena to the ISP allegedly attached to the editors' IP address.

Subject Area: 

Jurisdiction: 

Pages

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