In April the popular review site Yelp appealed a ruling from a Virginia court that affirmed a contempt order against Yelp for failing to comply with a subpoena. The order was the result of Yelp's refusal to turn over identifying information about its users who allegedly posted negative reviews about a carpet- cleaning business. Among other things, Yelp contended that the business failed to make the requisite showing of defamation in order to overcome the reviewers' First Amendment right to speak anonymously. (See Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.,
62 Va. App. 678 (2014).)
The right to speak anonymously is "an aspect of the freedom of speech protected by the First Amendment." (McIntyre v. Ohio Elections Comm'n
, 514 U.S. 334, 342 (1995).) Indeed, some of this country's most significant political speech has been published under pseudonyms, including The Federalist Papers
. (See, for example In re Anonymous Online Speakers
, 661 F.3d 1168, 1172-73 (9th Cir. 2011).) By remaining anonymous "[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws[.]" (Talley v. Free Speech Coalition
, 362 U.S. 60, 64 (1960).) However, a speaker has no First Amendment right to defame others. (Ashcroft v. Free Speech Coalition
, 535 U.S. 234, 245-46 (2002).)
The Internet platform is widely used by anonymous speakers; message boards, forums, chat rooms, blogs, and social media sites offer anyone with an Internet connection the opportunity to be heard. Not surprisingly, defamation claims arising from anonymous online speech have become commonplace. However, unlike traditional defamation cases, a plaintiff seeking to sue an anonymous speaker faces a unique challenge: discovering the identity of the alleged defamer. Not only can the process of uncovering the identity be complicated, but a defendant's First Amendment interests may prevent the plaintiff from discovering his or her identity altogether.
Subpoenas to Third Parties
Depending on where an anonymous speaker makes his or her allegedly defamatory statement (in a personal blog, message board, etc.), a plaintiff may be able to locate only limited identifying information about the speaker. For example, a plaintiff may be able to discover a link between the speaker and a website address, email address, or username. A plaintiff may then issue a third-party subpoena to parties who may, in turn, have the means to provide identifying information, such as subscriber information, telephone numbers, email addresses, and the IP address(es) associated with user activity. These third-party middlemen often include website owners, hosting services, or electronic communication providers that may have required their users to complete a sign-in or registration process before posting content. But even this approach is far from certain, because many hosting services and electronic communication service providers do not require verification of a user's or poster's identifying information. Thus the creation of email and other accounts using fabricated names and other fake information is common.
Courts within the Ninth Circuit have explained that Internet and email users have no privacy interest in "subscriber and usage" information that they voluntarily provide to third parties. (U.S. v. Forrester
, 512 F.3d 500, 509-10 (9th Cir. 2008); Chevron Corp. v. Donziger
, No. 12-MC-80237, 2013 WL 4536808, *9 (N.D. Cal. Aug. 22, 2013).) Nevertheless, subpoenaed third parties and defendants alike may resist plaintiffs' demands for information that reveals anonymous speakers' identities.
Disputes are typically resolved in the context of a motion to quash the subpoena or a motion to compel disclosure by the plaintiff. Although California state and federal courts have taken varying approaches to resolve such disputes, the courts' inquiries center on whether the plaintiff has made a sufficient showing of the viability of its defamation claim to overcome the defendant's First Amendment right to remain anonymous.
Prima Facie Showing
In one case, the California court of appeal was compelled to balance the defendant's First Amendment right to speak anonymously against the plaintiff's interest in discovering the defendant's identity. The dispute arose out of allegedly defamatory comments about the plaintiff and other corporate officers of the company on a financial message board hosted by third-party Yahoo. To serve the ten "John Doe" defendants, the plaintiff served a subpoena on Yahoo to discover the defendants' identities, each of whom posted the alleged defamatory comments using pseudonyms.
At issue on appeal was whether the trial court's denial of Doe 6's motion to quash the subpoena was correct. The appellate court held that, in order for the plaintiff to overcome the defendant's motion to quash, she was required to make a prima facie showing of the elements of libel. The court explained that "[w]hen there is a factual and legal basis for believing libel may have occurred, the writer's message will not be protected by the First Amendment." Ultimately, the court held that the plaintiff had not satisfied her burden and reversed the trial court's order, finding that the statements were not actionable. (See Krinsky v. Doe 6
, 159 Cal. App. 4th 1154 (2008).)
Federal courts have applied various standards when determining whether an anonymous speaker's identity, or identifying information, should be revealed during discovery. In a trademark infringement and commercial disparagement case brought by an investment fund-management firm against an unknown poster on an Internet message board, the plaintiff issued a third-party subpoena to Yahoo (the message board host) requesting disclosure of the poster's identity. When the poster responded by moving (anonymously) to quash the subpoena, the district court found that the plaintiff had not shown that the poster's conduct was unlawful, and the court quashed the subpoena. (Highfields Capital Mgmt. L.P. v. Doe
, 385 F. Supp. 2d 969 (N.D. Cal. 2005).) In so holding, the court fashioned a two-part test: (1) The plaintiff must produce "competent evidence" supporting a finding of each fact that is essential to the claim of defamation, and (2) if the plaintiff meets its initial evidentiary burden, the court must then determine that the magnitude of the harm that would be suffered by the plaintiff in the event of an adverse ruling would outweigh that of the defendant. (See Highfields Capital Mgmt
., 385 F. Supp. 2d at 975-76.)
In the Anonymous Online Speakers
case cited previously, the Ninth Circuit acknowledged a stricter standard, as formulated by the Delaware Supreme Court in Doe v. Cahill
(884 A.2d 451 (Del. 2005)). The Cahill
test requires that the plaintiff must "be able to survive a motion for summary judgment and give, or attempt to give, notice to the speaker before discovering the anonymous speaker's identity." (Cahill
, 884 A.2d at 457.) Although the Ninth Circuit approved of the Cahill
test as sufficient for a case involving a public figure, the court said that the Cahill
test "extends too far" in a commercial-speech case. However, the court also concluded that the trial court's use of the stricter test did not constitute clear error. (See Anonymous Online Speakers
, 661 F.3d at 1176-78.)
The Ninth Circuit has specifically acknowledged a trial judge's "wide latitude" in controlling discovery. To that end, and to assist lower courts in dealing with these cases, the Ninth Circuit has found that an in camera review of the anonymous speaker's identity may be necessary before a court determines what standard should apply to a plaintiff's motion to compel. Thus the court found that for the district court to determine the correct standard under which to rule on the motion to compel the speakers' identities, an in camera disclosure of their identities was necessary for the court to characterize the speech at issue. The court reasoned that the information would be relevant to determine if the comments constituted commercial speech and thus deserved a less-protective disclosure standard. (See S103, Inc. v. Bodybuilding.com, LLC
, 441 Fed. Appx. 431 (9th Cir. 2011).)
It is clear that no speaker has a First Amendment right to defame others, and under the law, for every wrong there is a remedy. Yet it is equally clear that there is a First Amendment right to speak anonymously, and that right has been an important part of our country's history. Still, as the law exists today, the burden is always on the plaintiff to provide at least some
factual and legal basis for his or her defamation claim before a court will compel disclosure of identifying information about an anonymous speaker.
Lee S. Brenner and Audrey Jing Faber are intellectual property, business, and entertainment litigators in the Los Angeles office of Kelley Drye & Warren.