Krinsky v. Doe 6 [1]

Lisa Krinsky, the former president, chief operating officer, and chairman of the board of SFBC International, Inc., a Florida company, 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. (For juicy details, see Ars Technica's article [2] on the case.)

Krinsky filed a lawsuit in Florida state court in January 2006 (the exact date is uncertain), 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 [3] the lower court's ruling. It held that Internet users have a First Amendment right to engage in anonymous speech, but this right must be balanced against a plaintiff's legitimate interest in pursuing a valid legal claim based on constitutionally unprotected speech, such as defamation. In striking this balance, the court rejected the "good faith" standard applied in In re Subpoena Duces Tecum to America Online [4], 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000), indicating that this test "offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection." The court also declined to apply the test devised in Doe v. Cahill [5], 884 A.2d 451 (Del. 2005), arguing that the "summary judgment" terminology used in that case is "unnecessary and potentially confusing."

Instead, the court adopted 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.