Courts Conflict on Anonymous, Allegedly Defamatory Online Speech

This article discusses several recent developments at the center of this debate, including: a recent case in New York state court that rejected a plaintiff's attempt to utilize “pre-action” relief to obtain the identity of an anonymous defendant purportedly engaged in defamatory online speech; a number of other cases holding that, at least at the initial stages of litigation, the indicia of outright falsity or “mixed opinion” in an anonymous online comment necessitated the disclosure of the defendant's identity; and the philosophical debate that undergirds the topic.

Cases that Reject Defamation Liability for Anonymous Defendants

Defamation claims are often defended as “pure opinion.” In other words, if the defendant can show that the statements alleged to be defamatory are solely opinions, the defamation cause of action will necessarily fail. However, distinguishing between actionable “assertions of fact,” also known as “mixed opinion,” and protected remarks that constitute “pure opinion,” has proven to be a formidable task for courts.

This defense was central to the recent decision in Nanoviricides v. Seeking Alpha, No. 151908/2014, 2014 NY Slip Op 31681(U) (N.Y. Sup. Ct., N.Y. Co. June 26, 2014). The relevant facts are as follows. Nanoviricides (NNVC) is a pharmaceutical company that primarily focuses on research and development of antiviral drugs. In February 2014, an anonymous user of the investing and financial advice bulletin board SeekingAlpha employing the pseudonym “Pump Terminator” posted highly negative remarks about NNVC. “Pump Terminator” stated that NNVC: 1) was a “House of Cards,” and therefore its stock should be sold; 2) engaged in “the most egregious shareholder violations we are aware of in any NYSE company”; and 3) governed itself akin to a Chinese “[reverse takeover] fraud.”

NNVC thereafter brought an action against SeekingAlpha to obtain the true identity of “Pump Terminator” so as to bring libel claims against this user. Specifically, NNVC sought “pre-action” discovery, a form of relief granted only where “a petitioner demonstrated that it has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” Sandals Resorts Int'l v. Google, 86 A.D.3d 32 (N.Y. App. Div. 2011); see also, Doe No. 1 v. Coleman, No. 2014-CA-000293-OA (Ky. Ct. App. June 20, 2014) (plaintiff that cannot make a prima facie case of defamation against anonymous Internet user will have subpoena to determine identity of the user quashed).

The test for defamation is four-part: 1) “whether the statement has a precise meaning so as to give rise to clear factual implications”; 2) “the degree to which the statements are verifiable”; 3) “whether the full context of the communication in which the statement appears signals to the reader is nature as opinion”; and 4) “whether the broader context of the communication so signals the reader.” Sandals, at 39-40.

The court held that the statements attributed to “Pump Terminator” constituted protected opinion. For one, the article explicitly identified, via disclaimer, that the thoughts expressed therein were an expression of the author's own opinion. Second, the author proffered his opinion subsequent to a clear recitation of the “facts” undergirding the opinion.

The court also held that the statements in question were protectable opinion in part because of the “unique context of the Internet.” Specifically, since statements offered on the Internet are “often the repository of a wide range of casual, emotive, and imprecise speech,” courts should not necessarily attribute the same imprimatur of credence to the statements that is likely accorded to statements made in other contexts. As applied to this case, the court noted that the “fact that the article appears on an internet [sic] message board also supports a finding that the article must be an expression of the author's opinion.” This statement could be interpreted to conclude that a statement is more likely to be an opinion, and thus less likely to be actionable, if only because it appeared on the Internet, irrespective of any context or other facts. At the very least, this notion also comports with the idea of the Internet as the “Wild West,” where the preponderance of speech is either hyperbolic or acerbic, and thus might never be prima facie considered as fact. However, the same argument was proffered unsuccessfully in Hadley v. Doe , which is discussed in detail below.

Cases Concluding that Anonymous Defendants Can Be Potentially Liable For Defamation

A number of courts have concluded that an anonymous defendant could have his identity revealed and thus face a defamation action. Procedurally, plaintiffs often file an initial suit against the website seeking to compel it to disclose any identifying details about the targeted user.

One case of this nature has generated significant controversy, and has recently been taken up by the Virginia Supreme Court, is Yelp v. Hadeed Carpet Cleaning, 752 S.E.2d 554 (Va. Ct. App. 2014), app. granted, (Va. May 26, 2014). This case concerned a subpoena duces tecum served to Yelp by a business claiming that certain anonymous reviews were defamatory. The subpoena ordered Yelp to reveal information about users who had authored seven negative reviews of Hadeed Carpet Cleaning (Hadeed). Hadeed claimed that it could not match these negative reviews with actual customers, thereby rendering them in violation of Yelp's Terms of Service, which mandated that users must actually have patronized a business prior to writing a review.

The state circuit court granted Hadeed's subpoena, and after Yelp's subsequent refusal to comply, it was held in contempt. On appeal, Yelp argued that pursuant to the First Amendment, this subpoena could not be issued without a showing of merit on both law and facts antecedent to its issuance. The Court of Appeals of Virginia disagreed with Yelp, and upheld the validity of the subpoena issued by the lower court. Although pure expressions of opinions are not actionable, “factual statements made to support or justify an opinion” can form the basis for a defamation claim. See, Raytheon Tech Servs. v. Hyland, 641 S.E.2d 84 (Va. 2007). In the instant case, whether the customer had actually received a service from Hadeed was considered a fact. Since this “fact” was in doubt due to Hadeed's inability to corroborate the existence of these customers, it could therefore be false, and thus form the basis of a defamation action, irrespective of the existence of opinions flowing from the existence, or lack thereof, of the “fact.”

The court focused on whether the statements were tortious and whether the identity of the anonymous communicator is important to advance the claim. First, it held that the statements of the anonymous Yelp reviewers were tortious because Hadeed could show in good faith that the pejorative statements in question were not actually opinions of customers, but by individuals falsely representing themselves as such. Second, it held that but for compliance with the subpoena, Hadeed could not pursue a defamation claim against anonymous defendants. But see, e.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005) (politician cannot compel ISP to disclose identity of individual who alleged he was “paranoid” and has “obvious mental deterioration,” as the statements occurred in a blog dedicated to opinions about local issues, and statements in blogs and chat rooms are of an “unreliable nature”); Dendrite International v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) (pharmaceutical company is not entitled to force ISP to disclose identity of anonymous poster that was a potential employee, as the company had not shown significant nexus between the allegedly harmful speech and the subsequent inhibition of company hiring practices and drop in stock price).

In Hadley v. Doe , — N.E.3d —, 2014 IL App. (2d) 130489 (Ill. App. Ct. 2014), an anonymous defendant (Fuboy) posted to a message board hinting that plaintiff (Hadley) was engaged in acts of sexual abuse. Hadley then moved to compel the message board's ISP as part of his defamation claim against Fuboy and he succeeded. In finding that the statement in question, which equated Hadley with pedophile Jerry Sandusky, could not be capable of an innocent construction, the Appellate Court of Illinois, Second District, held that it could be “reasonably interpreted as stating actual facts about the plaintiff,” and thus was excised from protection under the First Amendment. Specifically, unlike Seeking Alpha discussed above, Fuboy's statements were “mixed opinion” and not “pure opinion.” “Mixed opinion” statements refer to those that imply the existence of undisclosed facts, and can therefore be defamatory. Fuboy's comment about Hadley included the assertion that he was a “Sandusky ' waiting to be exposed.” This is tantamount, according to the court, to a position that Hadley is a child molester and will be exposed as such in the future. This “mixed opinion” thus buttressed Hadley's defamation claim sufficiently to survive a motion to dismiss.

Of further interest is that Fuboy defended his remarks on grounds that “the forum or medium of an Internet message board so lowers the intended seriousness of a statement that ' no reasonable reader would interpret his statement as an assertion of fact ” (emphasis added). Specifically, Fuboy contended that “ anonymous contributions to blogs ' take vitriol to extremes and in the process undermine credibility.” Although a visit to the comments section of most blog posts, particularly those involving matters of politics or hot-button issues, would seem to reaffirm this argument, the court ultimately disagreed with this characterization. Although the court conceded that “case law across jurisdictions supports the proposition that the forum ' of an Internet message board, chat room or blog is a factor that weighs in favor of finding that a reasonable reader would not read a statement as a factual assertion,” it nonetheless found this precept inapplicable to Fuboy's conduct. As the “mere fact that a statement is made on the Internet” does not per se render it hyperbolic, and therefore, for the reasons of the “mixed opinion” conclusion discussed above, the maxim that opinions in Internet commentary are in essence non-defamatory was squarely rejected.

Conclusion

To date, courts have not only issued conflicting opinions in these cases, but they have also offered decidedly conflicting rationales for those opinions. That is likely emblematic of the difficulty in confronting the question of how far does the First Amendment go on the Internet. The Web is known for its de facto inability to be regulated. Copyrighted media is pirated at will and hacking persists and even worsens no matter how many task forces and laws are created to stop it.

In this environment, some users are inclined to believe that accountability for speech, no matter how vitriolic, is both unlikely and anathema to the culture of the World Wide Web. Undoubtedly, countervailing concerns arise when targeted bullying or hate speech injures specific individuals or businesses. How these concerns will be balanced as related to online speech remains unclear. The rationales for protecting anonymous online speech have ranged from an insufficient nexus between the content of the speech and any resulting harm, to the notion that a particular blog is about a local affairs, and it is ensconced within the “unreliable” Internet content.

Richard Raysman is a Partner at Holland & Knight. Peter Brown is the principal at Peter Brown & Associates and a member of this newsletter's Board of Editors. They are co-authors of Computer Law: Drafting and Negotiating Forms and Agreements (Law Journal Press).

Anyone spending 10 minutes on the Internet reading content is often assaulted by angry and coarse language supporting frequently outrageous opinions. The First Amendment concepts of free speech have reached either new highs or discouraging lows when dealing with opinions and blogs on the Internet. In this unrestricted environment, can individuals or businesses protect their reputations?

Prof. Lyrissa Barnett Lidsky has noted in the Duke Law Journal that the poor grammar, caterwauling, hyperbole and frequent name-calling associated with anonymous Internet posts has created a “First Amendment doctrine” that “cannot hold John Does to the standards of ' factual accuracy, because part of what gives the Internet such widespread appeal is the fact that it allows ordinary citizens to have informational conversations about issues of public concern.” See, “Silencing John Doe: Defamation & Discourse in Cyberspace.” In the same vein, the Electronic Frontier Foundation (EFF), a think-tank that advocates for increasing privacy protections in all areas of online life, has noted that anonymity when speaking online serves the public and private good in a multitude of ways, from preventing retribution, to permitting inquiry of topics verboten in public or amongst “polite company.”

As a priori important these justifications for anonymity may be, like anything else, it does not occur unfettered from overarching prohibitions against defamation and libel. Lidsky acknowledges as such when she conceptualizes of online message board speech as distinct in its freewheeling and irreverent nature. As more and more users devote time online to often incendiary and accusatory speech under a veil of anonymity, courts at both the state and federal level have confronted recent cases that pit a plaintiff alleging defamation against a website where the comments were posted.

This article discusses several recent developments at the center of this debate, including: a recent case in New York state court that rejected a plaintiff's attempt to utilize “pre-action” relief to obtain the identity of an anonymous defendant purportedly engaged in defamatory online speech; a number of other cases holding that, at least at the initial stages of litigation, the indicia of outright falsity or “mixed opinion” in an anonymous online comment necessitated the disclosure of the defendant's identity; and the philosophical debate that undergirds the topic.

Cases that Reject Defamation Liability for Anonymous Defendants

Defamation claims are often defended as “pure opinion.” In other words, if the defendant can show that the statements alleged to be defamatory are solely opinions, the defamation cause of action will necessarily fail. However, distinguishing between actionable “assertions of fact,” also known as “mixed opinion,” and protected remarks that constitute “pure opinion,” has proven to be a formidable task for courts.

This defense was central to the recent decision in Nanoviricides v. Seeking Alpha, No. 151908/2014, 2014 NY Slip Op 31681(U) (N.Y. Sup. Ct., N.Y. Co. June 26, 2014). The relevant facts are as follows. Nanoviricides (NNVC) is a pharmaceutical company that primarily focuses on research and development of antiviral drugs. In February 2014, an anonymous user of the investing and financial advice bulletin board SeekingAlpha employing the pseudonym “Pump Terminator” posted highly negative remarks about NNVC. “Pump Terminator” stated that NNVC: 1) was a “House of Cards,” and therefore its stock should be sold; 2) engaged in “the most egregious shareholder violations we are aware of in any NYSE company”; and 3) governed itself akin to a Chinese “[reverse takeover] fraud.”

NNVC thereafter brought an action against SeekingAlpha to obtain the true identity of “Pump Terminator” so as to bring libel claims against this user. Specifically, NNVC sought “pre-action” discovery, a form of relief granted only where “a petitioner demonstrated that it has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” Sandals Resorts Int'l v. Google, 86 A.D.3d 32 (N.Y. App. Div. 2011); see also , Doe No. 1 v. Coleman, No. 2014-CA-000293-OA (Ky. Ct. App. June 20, 2014) (plaintiff that cannot make a prima facie case of defamation against anonymous Internet user will have subpoena to determine identity of the user quashed).

The test for defamation is four-part: 1) “whether the statement has a precise meaning so as to give rise to clear factual implications”; 2) “the degree to which the statements are verifiable”; 3) “whether the full context of the communication in which the statement appears signals to the reader is nature as opinion”; and 4) “whether the broader context of the communication so signals the reader.” Sandals, at 39-40.

The court held that the statements attributed to “Pump Terminator” constituted protected opinion. For one, the article explicitly identified, via disclaimer, that the thoughts expressed therein were an expression of the author's own opinion. Second, the author proffered his opinion subsequent to a clear recitation of the “facts” undergirding the opinion.

The court also held that the statements in question were protectable opinion in part because of the “unique context of the Internet.” Specifically, since statements offered on the Internet are “often the repository of a wide range of casual, emotive, and imprecise speech,” courts should not necessarily attribute the same imprimatur of credence to the statements that is likely accorded to statements made in other contexts. As applied to this case, the court noted that the “fact that the article appears on an internet [sic] message board also supports a finding that the article must be an expression of the author's opinion.” This statement could be interpreted to conclude that a statement is more likely to be an opinion, and thus less likely to be actionable, if only because it appeared on the Internet, irrespective of any context or other facts. At the very least, this notion also comports with the idea of the Internet as the “Wild West,” where the preponderance of speech is either hyperbolic or acerbic, and thus might never be prima facie considered as fact. However, the same argument was proffered unsuccessfully in Hadley v. Doe , which is discussed in detail below.

Cases Concluding that Anonymous Defendants Can Be Potentially Liable For Defamation

A number of courts have concluded that an anonymous defendant could have his identity revealed and thus face a defamation action. Procedurally, plaintiffs often file an initial suit against the website seeking to compel it to disclose any identifying details about the targeted user.

One case of this nature has generated significant controversy, and has recently been taken up by the Virginia Supreme Court, is Yelp v. Hadeed Carpet Cleaning, 752 S.E.2d 554 (Va. Ct. App. 2014), app. granted , (Va. May 26, 2014). This case concerned a subpoena duces tecum served to Yelp by a business claiming that certain anonymous reviews were defamatory. The subpoena ordered Yelp to reveal information about users who had authored seven negative reviews of Hadeed Carpet Cleaning (Hadeed). Hadeed claimed that it could not match these negative reviews with actual customers, thereby rendering them in violation of Yelp's Terms of Service, which mandated that users must actually have patronized a business prior to writing a review.

The state circuit court granted Hadeed's subpoena, and after Yelp's subsequent refusal to comply, it was held in contempt. On appeal, Yelp argued that pursuant to the First Amendment, this subpoena could not be issued without a showing of merit on both law and facts antecedent to its issuance. The Court of Appeals of Virginia disagreed with Yelp, and upheld the validity of the subpoena issued by the lower court. Although pure expressions of opinions are not actionable, “factual statements made to support or justify an opinion” can form the basis for a defamation claim. See, Raytheon Tech Servs. v. Hyland, 641 S.E.2d 84 (Va. 2007). In the instant case, whether the customer had actually received a service from Hadeed was considered a fact. Since this “fact” was in doubt due to Hadeed's inability to corroborate the existence of these customers, it could therefore be false, and thus form the basis of a defamation action, irrespective of the existence of opinions flowing from the existence, or lack thereof, of the “fact.”

The court focused on whether the statements were tortious and whether the identity of the anonymous communicator is important to advance the claim. First, it held that the statements of the anonymous Yelp reviewers were tortious because Hadeed could show in good faith that the pejorative statements in question were not actually opinions of customers, but by individuals falsely representing themselves as such. Second, it held that but for compliance with the subpoena, Hadeed could not pursue a defamation claim against anonymous defendants. But see, e.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005) (politician cannot compel ISP to disclose identity of individual who alleged he was “paranoid” and has “obvious mental deterioration,” as the statements occurred in a blog dedicated to opinions about local issues, and statements in blogs and chat rooms are of an “unreliable nature”); Dendrite International v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) (pharmaceutical company is not entitled to force ISP to disclose identity of anonymous poster that was a potential employee, as the company had not shown significant nexus between the allegedly harmful speech and the subsequent inhibition of company hiring practices and drop in stock price).

In Hadley v. Doe , — N.E.3d —, 2014 IL App. (2d) 130489 (Ill. App. Ct. 2014), an anonymous defendant (Fuboy) posted to a message board hinting that plaintiff (Hadley) was engaged in acts of sexual abuse. Hadley then moved to compel the message board's ISP as part of his defamation claim against Fuboy and he succeeded. In finding that the statement in question, which equated Hadley with pedophile Jerry Sandusky, could not be capable of an innocent construction, the Appellate Court of Illinois, Second District, held that it could be “reasonably interpreted as stating actual facts about the plaintiff,” and thus was excised from protection under the First Amendment. Specifically, unlike Seeking Alpha discussed above, Fuboy's statements were “mixed opinion” and not “pure opinion.” “Mixed opinion” statements refer to those that imply the existence of undisclosed facts, and can therefore be defamatory. Fuboy's comment about Hadley included the assertion that he was a “Sandusky ' waiting to be exposed.” This is tantamount, according to the court, to a position that Hadley is a child molester and will be exposed as such in the future. This “mixed opinion” thus buttressed Hadley's defamation claim sufficiently to survive a motion to dismiss.

Of further interest is that Fuboy defended his remarks on grounds that “the forum or medium of an Internet message board so lowers the intended seriousness of a statement that ' no reasonable reader would interpret his statement as an assertion of fact ” (emphasis added). Specifically, Fuboy contended that “ anonymous contributions to blogs ' take vitriol to extremes and in the process undermine credibility.” Although a visit to the comments section of most blog posts, particularly those involving matters of politics or hot-button issues, would seem to reaffirm this argument, the court ultimately disagreed with this characterization. Although the court conceded that “case law across jurisdictions supports the proposition that the forum ' of an Internet message board, chat room or blog is a factor that weighs in favor of finding that a reasonable reader would not read a statement as a factual assertion,” it nonetheless found this precept inapplicable to Fuboy's conduct. As the “mere fact that a statement is made on the Internet” does not per se render it hyperbolic, and therefore, for the reasons of the “mixed opinion” conclusion discussed above, the maxim that opinions in Internet commentary are in essence non-defamatory was squarely rejected.

Conclusion

To date, courts have not only issued conflicting opinions in these cases, but they have also offered decidedly conflicting rationales for those opinions. That is likely emblematic of the difficulty in confronting the question of how far does the First Amendment go on the Internet. The Web is known for its de facto inability to be regulated. Copyrighted media is pirated at will and hacking persists and even worsens no matter how many task forces and laws are created to stop it.

In this environment, some users are inclined to believe that accountability for speech, no matter how vitriolic, is both unlikely and anathema to the culture of the World Wide Web. Undoubtedly, countervailing concerns arise when targeted bullying or hate speech injures specific individuals or businesses. How these concerns will be balanced as related to online speech remains unclear. The rationales for protecting anonymous online speech have ranged from an insufficient nexus between the content of the speech and any resulting harm, to the notion that a particular blog is about a local affairs, and it is ensconced within the “unreliable” Internet content.

Richard Raysman is a Partner at Holland & Knight. Peter Brown is the principal at Peter Brown & Associates and a member of this newsletter's Board of Editors. They are co-authors of Computer Law: Drafting and Negotiating Forms and Agreements (Law Journal Press).