Anonymity in Cyberspace: Courts Shield Speech but Not Piracy

Los Angeles

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MONDAY, APRIL 16, 2012 LITIGATION Anonymity in cyberspace: courts shield speech but not piracy

By Andrew J. Thomas In an early decision, the Northern Dis- a streamlined version of Dendrite in its trict of California held in Columbia Insur- 2005 Doe v. Cahill decision, a case that ew disagree that noncommercial ance Co. v. Seescandy.com (1999) that a involved libel claims asserted by a city speech on the Internet is fully pro- party seeking to uncover the identity of an council member against an anonymous Ftected by the First Amendment, or anonymous defendant must demonstrate online critic. The court retained two of that the First Amendment protects the that its claims are capable of withstand- Dendrite’s four requirements — that the right to speak anonymously. Yet difficult ing a motion to dismiss. Even in that case, plaintiff make reasonable efforts to noti- questions arise when litigants attempt to which involved trademark claims against fy the anonymous defendant and that the unmask anonymous Internet users in order a cyber-squatter rather than defamation plaintiff make a prima facie evidentiary to assert legal claims based on their online claims, the court suggested that some evi- showing on each element of its claims, a activities. dentiary showing was required. Analogiz- test the court called the “summary judg- Invoking the Founders’ pseudonymous ing to the probable cause in criminal law, ment standard.” political advocacy in The Federalist Pa- the court held the plaintiff must make In Krinsky v. Doe (2008), the Califor- pers, the U.S. Supreme Court in McIntyre “some showing that an act giving rise to nia Court of Appeal surveyed the various v. Ohio Elections Commission (1995) rec- civil liability actually occurred.” tests adopted by federal and state courts ognized that “an author’s decision and similarly concluded that plain- to remain anonymous ... is an aspect Courts considering such claims have recognized tiffs must make a prima facie evi- of the freedom of speech protected that the defendants’ First Amendment rights to dentiary showing in support of the by the First Amendment.” The In- speak anonymously should not be easily forfeited elements of their libel claims in or- ternet provides merely the latest der to overcome a defendant’s mo- platform for anonymous speech, as the result of the mere assertion of meritless or tion to quash a subpoena aimed at and in Reno v. ACLU (1997) the makeweight claims. discovering his identity. The court Supreme Court squarely held that essentially adopted the Cahill test, online speech enjoys the same degree of Later decisions in the libel context pro- while eschewing its “summary judgment” First Amendment protection as do books, duced tests more explicitly protective of and “motion to dismiss” terminology. newspapers and other traditional media. anonymous speakers. Dendrite Interna- The U.S. 9th Circuit Court of Appeals In the Court’s words, the Internet allows tional v. Doe (2001), a widely-followed appeared to buck this emerging trend in anyone with a modem to “become a town decision by a New Jersey appellate court, a 2011 decision, In re Anonymous On- crier with a voice that resonates farther denied a request by the corporate plaintiff line Speakers, which suggested that those than it could from any soapbox.” to discover the identities of anonymous who engage anonymously in “commercial Several tests have arisen, primarily in individuals who allegedly had posted de- speech” are entitled to less constitutional the context of “cyber-libel” claims — famatory comments on a message board. protection than those who engage anony- suits typically alleging that an anonymous To obtain disclosure, the court required mously in political speech and therefore online speaker defamed the plaintiff by the plaintiff to provide reasonable notice should not get the benefit of the high bar to making intemperate chat room or mes- to the anonymous speakers of the sub- disclosure imposed by Cahill and Dendrite. sage board comments. The issues usu- poena, set forth the exact statements made The panel initially held that the speech in ally are teed up after the plaintiff files a by each speaker, and present sufficient question — criticism of a company’s busi- defamation suit against “Doe” defendants, evidence to support each element of its ness practices — constituted “commercial attempts to subpoena an Internet service claims on a prima facie basis. Even then, speech.” In an amended opinion, the panel provider, or ISP, like Yahoo! or AOL, and Dendrite held that the judge must weigh reached the same result without making is met with a motion to quash by the anon- the defendants’ First Amendment right of any determination whether the speech in ymous speaker. anonymous speech “against the strength question was commercial. Courts considering such claims have of the prima facie case presented and the The defamation action arose from what recognized that the defendants’ First necessity for the disclosure.” The North- the court described as an alleged “Internet Amendment rights to speak anonymously ern District embraced a modified version smear campaign” by a business competi- should not be easily forfeited as the result of the Dendrite test in 2005 in Highfields tor orchestrated via anonymous postings of the mere assertion of meritless or make- Capital Management v. Doe. and videos that disparaged the plaintiff, weight claims. The Delaware Supreme Court adopted a multilevel marketing company (and suc- cessor of Amway Corp.). The district court and show that the subpoenaed information of claim and, more importantly, a different had applied the Cahill test, which the 9th is “central” to the party’s claim. The court kind of speech” — namely, a libel claim Circuit described inaccurately as the “most also must weigh the defendant’s expecta- that threatened to chill political speech exacting” of the extant tests, yet nonethe- tion of privacy, which Judge Chin found about an elected official. Instead, the court less ordered the defendant to disclose the to be minimal in the case of online file- adopted the Arista/Sony Music standard. identities of three non-party anonymous sharing. That test, the judge held, “strikes the ap- speakers. The U.S. 2nd Circuit Court of Appeals propriate balance between the limited Both sides petitioned for mandamus adopted this approach in 2010 in Arista protection afforded to speech that consti- and the court denied both petitions, cit- Records v. Doe — the only federal appel- tutes copyright infringement and the need ing the limited and “extraordinary” nature late decision to date that has balanced the for the plaintiff to serve a defendant with of mandamus relief and the deferential right to obtain discovery in support of a process in order to advance non-frivolous “plain error” standard of review. Far from copyright infringement claim against the claims of infringement.” endorsing Cahill, however, the 9th Circuit constitutional right to engage in anony- These recent decisions indicate that went out of its way to opine that “ Cahill’s mous speech online. The Arista court while courts are likely to continue apply- bar extends too far” in the context of the phrased its holding broadly — describing ing the speech-protective, high-burden non-political speech at issue in the case. what in essence is a motion-to-dismiss test tests articulated in Dendrite, Cahill and In cases involving claims of copyright as “an appropriate general standard for de- Krinsky in cases that involve defamation infringement online, the courts have de- termining whether a motion to quash, to claims (or similar claims based on non- veloped similar but less-stringent tests and preserve the objecting party’s anonymity, commercial speech), courts are likely to be generally have declined to quash subpoe- should be granted.” The Arista/Sony Mu- far less solicitous in protecting the identi- nas directed to ISPs that seek the identities sic test subsequently has been applied by ties of individuals who use the Internet to of anonymous individuals, finding that the district courts in the D.C., 1st, 3rd, 4th, infringe intellectual property rights, reveal alleged infringers do not have significant 6th, 7th, 9th, and 10th Circuits. trade secrets, or engage in other conduct free speech or privacy interests. Just last month, a Pennsylvania federal outside the core protections of the First In an influential 2004 decision, the judge denied motions to quash subpoenas Amendment. Southern District of New York articulated filed by two anonymous Internet users in a five-factor test for balancing the pri- Raw Films v. Does 1-15 (E.D. Pa. 2012). vacy concerns of anonymous users with The defendants were among 15 “Doe” de- Andrew J. Thomas is a the discovery needs of plaintiffs asserting fendants who allegedly used the BitTor- partner in the Content, copyright claims. In Sony Music Enter- rent peer-to-peer file-sharing protocol to Media & Entertainment tainment v. Does 1-40, then-district Judge download and distribute a copy of one of group in Jenner & Block LLP’s Los Angeles office. Denny Chin ruled that the party seeking the plaintiff’s adult films. Citing the 9th He represents content discovery must make a “concrete showing Circuit’s decision in Anonymous Online owners in copyright, of a prima facie claim,” be specific in its Speakers, the judge concluded that the trademark and First discovery requests, show an absence of al- Cahill high-burden test was inappropriate Amendment matters. He can be reached at ternative means to obtain the information, because Cahill “involved a different type (213) 239-5155 or [email protected].