Unmasking Anonymous Online Defamation

The explosion of “Web 2.0″ phenomena ' social media, blogs, and product review sites ' has brought with it a deluge of published material that is arguably defamatory or otherwise actionable.

While some actually welcome this development ' preferring the Web to be, and remain, “a frontier society free from the conventions and constraints that limit discourse in the real world” (see, Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 863 (2000)) ' many others do not, especially those worried about the potential impact of disparaging online material on their corporate reputation.

But many of those troubled by the threat to corporate reputation from defamatory online content also have discovered that mitigating its effect, or getting it removed, is far from easy.

Webmasters are generally unwilling to remove defamatory material for the same reason they allow it to be posted in the first place: because their business model requires a growing pool of unpaid content contributors, whom they fear will abandon them for a competitor should they appear to “side” with the object of disparaging remarks. (This business model is facilitated, of course, by the fact that online publishers enjoy immunity from vicarious liability for defamatory content under Section 230 of the Communications Decency Act (“CDA”). See, 47 U.S.C. '230.)

Sometimes, instances of online disparagement can satisfactorily be addressed using emerging Web 2.0-inspired approaches, such as “authentic engagement” with the online community or search engine optimization (“SEO”) tactics aimed at pushing negative content lower down on search engine results.

Other times ' for example, where the defamatory content is especially egregious, is part of a stealth campaign by a rival corporation or interest group, or stems from an intransigent scofflaw ' the only opportunity for relief may be the courts.

But if action in the courts is indicated, an immediate challenge arises in identifying the material's anonymous (or pseudonymous) author.

And although an anonymous online commenter's true identity can usually be obtained by issuing third-party “John Doe” subpoenas to discover the records kept by their ISP and host Web site, a plaintiff's right to obtain that discovery from those third parties may be obstructed by the defendant's Constitutional right to remain anonymous. See, McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342 (1995) (“an author's decision to remain anonymous ' is an aspect of the freedom of speech protected by the First Amendment”); see also, Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (making clear that the right applies in the Internet context).

As a result, for the past dozen or so years, state and federal trial courts throughout the country have attempted to balance these conflicting rights by requiring that plaintiffs make a preliminary showing before being permitted to discover an anonymous defamation defendant's identity. At least three different versions of that test are in regular use today.

The Three Alternative
Standards/Tests
For Plaintiffs to Meet

The earliest of these tests, and the one most easily satisfied, requires the plaintiff to show that the action could survive a hypothetical motion to dismiss. See, e.g., Columbia Ins. Co. v. Seescandy.Com, 185 F.R.D. 573 (N.D. Cal. 1999).

In Dendrite Int'l v. Doe No. 3, 775 A.2d 756 (N.J. Super. App. Div. 2001), however, the New Jersey Court of Appeals enhanced this requirement by applying a prima facie case test.

Under the “streamlined” version of this Dendrite test later applied, for example, in Highfields Capital Mgmt., LP v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005), the plaintiff must adduce evidence supporting a prima facie case on all elements of its claim, and the court must determine that enforcing the subpoena “would cause relatively little harm to the defendant's First Amendment and privacy rights” and is “necessary to enable plaintiff to protect against or remedy serious wrongs.” Highfields Capital Mgmt., supra, at 975-76.

This version of the test also was applied in the leading California state court opinion on the subject. See, Krinsky v. Doe 6, 159 Cal.App.4th 1154 (2008).

Finally, some courts have applied a more exacting test under which the plaintiff must demonstrate that its action could survive a hypothetical motion for summary judgment. See, e.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005); Sinclair v. TubeSockTedD, 596 F.Supp.2d 128 (D.D.C., 2009); Best Western Int'l, Inc. v. Doe, 2006 WL 2091695, at 4-5 (D.Ariz. July 25, 2006).

Because this trial-level practice typically arises in the context of an interlocutory discovery dispute, it is rarely subjected to appellate review. Recently, however, the Ninth Circuit Court of Appeals had an opportunity to weigh in on the subject in responding to a writ petition filed in a case titled In re Anonymous Online Speakers, 611 F.3d 653 (9th Cir. 2010) (hereinafter “Quixtar“).

The Ninth Circuit's Analysis Of the Anonymity Issue in Quixtar

In Quixtar, the plaintiff accused several Doe defendants, inter alia, of waging a campaign of disparagement, disguised as spontaneous “grassroots” behavior, by using anti-competitive Web 2.0 practices.

Believing that a series of defamatory anonymous comments made pseudonymously on five different blogs were actually made by officers, employees or agents of defendants' rival company, it therefore sought disclosure of the authors' true identities. When the trial court issued an order permitting that discovery, the Doe defendants petitioned the Court of Appeals for a writ to vacate the lower court's order.

After reviewing the various tests applied by the trial courts, the Quixtar court held the lower court's application of the Cahill motion for summary judgment test was inappropriate in this circumstance, because the speech at issue in Quixtar was commercial in nature:

Given the importance of political speech in the history of this country, it is not surprising that courts afford political speech the highest level of protection. See, Meyer v. Grant, 486 U.S. 414, 422, 425 (1988) (describing the First Amendment protection of “core political speech” to be “at its zenith”). Commercial speech, on the other hand, enjoys “a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,” Bd. of Trustees of SUNY v. Fox, 492 U.S. 469, 477 (1989) … .

Quixtar at 2.

Where commercial speech is at issue, the court held, the Cahill test requires too much of a showing by the plaintiff. See, Quixtar at 6.

Although the Ninth Circuit in Quixtar found the lower court's error here was harmless (as it found for the plaintiff despite the overly harsh test), it made it quite clear that if the trial court's decision had gone the other way, its application of the wrong test could have rendered that decision reversible.

The Court of Appeals' opinion provides valuable guidance to trial level courts as to which test should apply in any particular case.

In particular, it asserted two important governing principles: 1) that the major driver in that choice should be the nature of the anonymous speech at issue; and 2) that anonymity warrants far less First Amendment protection ' and a less demanding test for the plaintiff ' when it covers commercial rather than non-commercial speech. See, Quixtar at 6, citing Perry v. Schwarzenegger, 591 F.3d 1147, 1160-61 (9th Cir.2010).

Quixtar Influential, But Flawed

The Ninth Circuit's holdings in Quixtar ' that the nature of the speech at issue drives the choice of test to apply in protecting an author's anonymity, and that this protection is significantly lower where the speech is commercial rather than non-commercial ' promise to remain extremely influential, at least until the Supreme Court offers a contrary view.

This is not only because Quixtar, for reasons explained above, will likely remain one of the few appellate-level opinions on this subject, but also because many of the likely subpoena targets for plaintiffs seeking to unmask the anonymity of online commenters (such as Yahoo!, Google, etc.) are physically located within the Ninth Circuit region, where motions to quash those subpoenas must therefore be brought and adjudicated.

However, there are significant practical difficulties in implementing the Ninth Circuit's guidance.

For example, basing the choice of test to apply on the nature of the anonymous speech at issue is problematic where the true nature of the speech cannot be determined until after the author's identity is revealed.

It is far from clear, therefore, what test a court should apply in a case where deception is alleged ' for example, the increasingly common practice of competitor companies waging reputation attacks by using online anonymity to masquerade as unhappy customers (as was allegedly the case in Quixtar). This and other Web 2.0 practices threaten to fatally undermine the Ninth Circuit's intended approach.

Options for the Disparaged

While much is still unclear in this complex and emerging area of law, a good practices protocol for corporate and litigation counsel responding to cases of online disparagement is beginning to emerge.

First, an important initial step in dealing with online disparagement is conducting a “forensic” investigation into its source, to determine whether the disparagement is commercially motivated.

Second, where evidence suggests that the disparagement is commercially motivated, any subsequent legal action should likely be founded on unfair competition law, or claims of tortious interference, rather than simply “defamation,” as this will more accurately oppose a reputational attack by an undercover competitor, and provide a sounder basis for unmasking its identity.

Third, where the investigation does not suggest the disparagement is commercial in nature, the best approach for the company may be to don a thick skin, embrace the episode as an expression of our freedom-of-speech-based way of life, and work closely with corporate communications to “authentically engage” the debate, rather than “correct” it.

Conclusion

Like it or not, the cases indicate that courts are unwilling to strip an author's right to anonymity for non-commercial speech, unless the disparagement is truly egregious.

What is abundantly clear, however, is that in all cases, challenges arising from the Web 2.0 paradigm should be addressed by an integrated, multi-disciplinary approach ' an approach that combines a sophisticated comprehension of the cutting-edge legal issues involved, with traditional PR expertise, and a genuine command of this new technological landscape.

The explosion of “Web 2.0″ phenomena ' social media, blogs, and product review sites ' has brought with it a deluge of published material that is arguably defamatory or otherwise actionable.

While some actually welcome this development ' preferring the Web to be, and remain, “a frontier society free from the conventions and constraints that limit discourse in the real world” (see, Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 863 (2000)) ' many others do not, especially those worried about the potential impact of disparaging online material on their corporate reputation.

But many of those troubled by the threat to corporate reputation from defamatory online content also have discovered that mitigating its effect, or getting it removed, is far from easy.

Webmasters are generally unwilling to remove defamatory material for the same reason they allow it to be posted in the first place: because their business model requires a growing pool of unpaid content contributors, whom they fear will abandon them for a competitor should they appear to “side” with the object of disparaging remarks. (This business model is facilitated, of course, by the fact that online publishers enjoy immunity from vicarious liability for defamatory content under Section 230 of the Communications Decency Act (“CDA”). See, 47 U.S.C. '230.)

Sometimes, instances of online disparagement can satisfactorily be addressed using emerging Web 2.0-inspired approaches, such as “authentic engagement” with the online community or search engine optimization (“SEO”) tactics aimed at pushing negative content lower down on search engine results.

Other times ' for example, where the defamatory content is especially egregious, is part of a stealth campaign by a rival corporation or interest group, or stems from an intransigent scofflaw ' the only opportunity for relief may be the courts.

But if action in the courts is indicated, an immediate challenge arises in identifying the material's anonymous (or pseudonymous) author.

And although an anonymous online commenter's true identity can usually be obtained by issuing third-party “John Doe” subpoenas to discover the records kept by their ISP and host Web site, a plaintiff's right to obtain that discovery from those third parties may be obstructed by the defendant's Constitutional right to remain anonymous. See , McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342 (1995) (“an author's decision to remain anonymous ' is an aspect of the freedom of speech protected by the First Amendment”); see also , Reno v. Am. Civil Liberties Union , 521 U.S. 844, 870 (1997) (making clear that the right applies in the Internet context).

As a result, for the past dozen or so years, state and federal trial courts throughout the country have attempted to balance these conflicting rights by requiring that plaintiffs make a preliminary showing before being permitted to discover an anonymous defamation defendant's identity. At least three different versions of that test are in regular use today.

The Three Alternative
Standards/Tests
For Plaintiffs to Meet

The earliest of these tests, and the one most easily satisfied, requires the plaintiff to show that the action could survive a hypothetical motion to dismiss. See , e.g. , Columbia Ins. Co. v. Seescandy.Com , 185 F.R.D. 573 (N.D. Cal. 1999).

In Dendrite Int'l v. Doe No. 3 , 775 A.2d 756 (N.J. Super. App. Div. 2001), however, the New Jersey Court of Appeals enhanced this requirement by applying a prima facie case test.

Under the “streamlined” version of this Dendrite test later applied, for example, in Highfields Capital Mgmt., LP v. Doe , 385 F. Supp. 2d 969 (N.D. Cal. 2005), the plaintiff must adduce evidence supporting a prima facie case on all elements of its claim, and the court must determine that enforcing the subpoena “would cause relatively little harm to the defendant's First Amendment and privacy rights” and is “necessary to enable plaintiff to protect against or remedy serious wrongs.” Highfields Capital Mgmt. , supra , at 975-76.

This version of the test also was applied in the leading California state court opinion on the subject. See , Krinsky v. Doe 6 , 159 Cal.App.4th 1154 (2008).

Finally, some courts have applied a more exacting test under which the plaintiff must demonstrate that its action could survive a hypothetical motion for summary judgment. See , e.g. , Doe v. Cahill , 884 A.2d 451 (Del. 2005); Sinclair v. TubeSockTedD , 596 F.Supp.2d 128 (D.D.C., 2009); Best Western Int'l, Inc. v. Doe, 2006 WL 2091695, at 4-5 (D.Ariz. July 25, 2006).

Because this trial-level practice typically arises in the context of an interlocutory discovery dispute, it is rarely subjected to appellate review. Recently, however, the Ninth Circuit Court of Appeals had an opportunity to weigh in on the subject in responding to a writ petition filed in a case titled In re Anonymous Online Speakers, 611 F.3d 653 (9th Cir. 2010) (hereinafter “Quixtar“).

The Ninth Circuit's Analysis Of the Anonymity Issue in Quixtar

In Quixtar, the plaintiff accused several Doe defendants, inter alia, of waging a campaign of disparagement, disguised as spontaneous “grassroots” behavior, by using anti-competitive Web 2.0 practices.

Believing that a series of defamatory anonymous comments made pseudonymously on five different blogs were actually made by officers, employees or agents of defendants' rival company, it therefore sought disclosure of the authors' true identities. When the trial court issued an order permitting that discovery, the Doe defendants petitioned the Court of Appeals for a writ to vacate the lower court's order.

After reviewing the various tests applied by the trial courts, the Quixtar court held the lower court's application of the Cahill motion for summary judgment test was inappropriate in this circumstance, because the speech at issue in Quixtar was commercial in nature:

Given the importance of political speech in the history of this country, it is not surprising that courts afford political speech the highest level of protection. See , Meyer v. Grant , 486 U.S. 414, 422, 425 (1988) (describing the First Amendment protection of “core political speech” to be “at its zenith”). Commercial speech, on the other hand, enjoys “a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,” Bd. of Trustees of SUNY v. Fox , 492 U.S. 469, 477 (1989) … .

Quixtar at 2.

Where commercial speech is at issue, the court held, the Cahill test requires too much of a showing by the plaintiff. See, Quixtar at 6.

Although the Ninth Circuit in Quixtar found the lower court's error here was harmless (as it found for the plaintiff despite the overly harsh test), it made it quite clear that if the trial court's decision had gone the other way, its application of the wrong test could have rendered that decision reversible.

The Court of Appeals' opinion provides valuable guidance to trial level courts as to which test should apply in any particular case.

In particular, it asserted two important governing principles: 1) that the major driver in that choice should be the nature of the anonymous speech at issue; and 2) that anonymity warrants far less First Amendment protection ' and a less demanding test for the plaintiff ' when it covers commercial rather than non-commercial speech. See , Quixtar at 6, citing Perry v. Schwarzenegger , 591 F.3d 1147, 1160-61 (9th Cir.2010).

Quixtar Influential, But Flawed

The Ninth Circuit's holdings in Quixtar ' that the nature of the speech at issue drives the choice of test to apply in protecting an author's anonymity, and that this protection is significantly lower where the speech is commercial rather than non-commercial ' promise to remain extremely influential, at least until the Supreme Court offers a contrary view.

This is not only because Quixtar, for reasons explained above, will likely remain one of the few appellate-level opinions on this subject, but also because many of the likely subpoena targets for plaintiffs seeking to unmask the anonymity of online commenters (such as Yahoo!, Google, etc.) are physically located within the Ninth Circuit region, where motions to quash those subpoenas must therefore be brought and adjudicated.

However, there are significant practical difficulties in implementing the Ninth Circuit's guidance.

For example, basing the choice of test to apply on the nature of the anonymous speech at issue is problematic where the true nature of the speech cannot be determined until after the author's identity is revealed.

It is far from clear, therefore, what test a court should apply in a case where deception is alleged ' for example, the increasingly common practice of competitor companies waging reputation attacks by using online anonymity to masquerade as unhappy customers (as was allegedly the case in Quixtar). This and other Web 2.0 practices threaten to fatally undermine the Ninth Circuit's intended approach.

Options for the Disparaged

While much is still unclear in this complex and emerging area of law, a good practices protocol for corporate and litigation counsel responding to cases of online disparagement is beginning to emerge.

First, an important initial step in dealing with online disparagement is conducting a “forensic” investigation into its source, to determine whether the disparagement is commercially motivated.

Second, where evidence suggests that the disparagement is commercially motivated, any subsequent legal action should likely be founded on unfair competition law, or claims of tortious interference, rather than simply “defamation,” as this will more accurately oppose a reputational attack by an undercover competitor, and provide a sounder basis for unmasking its identity.

Third, where the investigation does not suggest the disparagement is commercial in nature, the best approach for the company may be to don a thick skin, embrace the episode as an expression of our freedom-of-speech-based way of life, and work closely with corporate communications to “authentically engage” the debate, rather than “correct” it.

Conclusion

Like it or not, the cases indicate that courts are unwilling to strip an author's right to anonymity for non-commercial speech, unless the disparagement is truly egregious.

What is abundantly clear, however, is that in all cases, challenges arising from the Web 2.0 paradigm should be addressed by an integrated, multi-disciplinary approach ' an approach that combines a sophisticated comprehension of the cutting-edge legal issues involved, with traditional PR expertise, and a genuine command of this new technological landscape.