JOLT Digest

D.C. Appeals Court Sets New Standard for Unmasking Anonymous Online Speakers

By Anthony Kammer – Edited by Evelyn Breithaupt
Solers, Inc. v. Doe, No. 07-CV-159 (D.C. Cir. Aug. 13, 2009)
Opinion

On August 13, 2009, the D.C. Court of Appeals remanded Solers, Inc.’s case against an anonymous speaker and provided the lower court with a new standard for determining when an anonymous speaker’s identity may be revealed.

The Volokh Conspiracy notes that although the court limits its decision to defamation claims, the court’s logic would apply to many other forms of anonymous speech. The Citizen Media Law Project points out that this case is factually distinct from many online defamation suits because the comments at issue were not posted on a blog or other public platform. Newsroomlawblog covers the recent decision and has earlier reported that there is a growing trend for courts to protect anonymous speakers unless the plaintiff meets some elevated standard. Ars Technica and Exclusive Rights provide additional commentary.

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By Sharona Hakimi

Amazon Threatened with Class Action for Remotely Deleting Orwell E-books on Kindles

On July 20, MediaPost News reported that the law firm KamberEdelson is readying a class action lawsuit on behalf of consumers against Amazon for removing George Orwell books on owners’ Kindles. Amazon remotely deleted the e-books from users after discovering that the company that added them to the online catalog did not have rights to the books. Amazon did issue refunds to the owners, but representatives of KamberEdelson argue that the action infringes on consumer’s property rights and violates Amazon’s user agreement. On Boing Boing, Cory Doctorow discusses the problems that remote deletion poses to Digital Rights Media as a whole.

British Judge Rules that Google is Not Liable for Defamatory Search Results

On July 20, the New York Times reported that a High Court judge in Britain ruled that Google cannot be held liable for defamatory material appearing in its search results. The case arose when Metropolitan International Schools, which runs Internet-based training courses, sued Google over negative comments posted on a third party web site that appeared as text blurbs in Google search results. The judge held that Google “has merely, by the provision of its search service, played the role of a facilitator.” While this decision is consistent with America and other European countries’ libel laws, this case is seen as a significant win for search engines because of England’s reputation as being sympathetic to libel claimants.

USPTO Places Its “Peer-to-Patent” Pilot Program on Hold

In 2007, the United States Patent and Trade Office partnered with New York Law School’s Center for Patent Innovation to create an online collaborative patent review program. After two years, the program has been suspended in order to evaluate its effectiveness, InformationWeek reports. The Center for Patent Innovation also cited the poor economy as a reason for the suspension. Hoping to decrease the backlog in the USPTO, the pilot program encouraged patent applicants to volunteer their submissions to undergo peer review. Peer-to-Patent issued its second anniversary report this July and announced it will stop accepting new applicants. Despite the hiatus, there is hope that the program will be re-launched in the future as David Kappos, Obama’s nominee for director of USPTO, has indicated his support of the program, calling it “the Patent Office of the 21st century.”

Blogger Status Fails to Provide Journalistic Protection under N.J. Shield Law

By Ian B. Brooks – Edited by Amanda Rice
Too Much Media, LLC v. Hale, Case No. MON-L-2736-08, (N.J. Super. Ct. Law Div. June 30, 2009) Slip Opinion

The Monmouth County Superior Court of New Jersey held that the Defendant, blogger Shellee Hale, was not entitled to the protections of a newsperson under New Jersey’s Shield Law. Although Hale claimed that her posts on an Internet message board were intended to inform the public and spur debate on Too Much Media’s alleged activities, Judge Locascio focused on Hale’s credibility and whether her posting resembled traditional news media. The court noted that although the Shield Law in New Jersey was “one of the nation’s broadest,” Hale “presented no credible evidence . . . that she ever worked for any ‘newspapers, magazines, press associations, news agencies or wire services, radio or television.’” In reaching this conclusion, Judge Locascio gave no weight to Hale’s being a blogger or her claims of having published articles in a newspaper and trade journal because she failed to name the publications and lied in her certification to the court, which Judge Locasio labeled a “sham affidavit.”

The Citizen Media Law Project provides an overview of the case. The New Jersey Law Journal also summarizes the case and includes comments from Too Much Media attorney, Joel Kreizman. (more…)

Ninth Circuit Court of Appeals Considers Internet Service Provider’s Liability for Fake Profiles

By Ezra Pinsky – Edited by Dmitriy Tishyevich
Barnes v. Yahoo!, Inc., May 7, 2009, No. 05-36189.
Slip Opinion

On May 7th, the Court of Appeals for the Ninth Circuit affirmed in part and reversed in part a district court’s 12(b)(6) dismissal of a complaint which had sought to impose negligence liability on Yahoo for hosting a fraudulent personals profile created by the plaintiff’s ex-boyfriend, despite plaintiff’s requests that it be removed and Yahoo’s assurances that it would be.  The district court dismissed the claim, holding that Section 230(c)(1) of the Communications Decency Act immunized Yahoo from liability.  Writing for the Court of Appeals, Judge O’Scannlain affirmed in part, upholding the district court’s finding that Section 230(c)(1) protects Yahoo from negligence liability for third-party tortious material hosted on its website.  However, the court reversed in part and remanded, holding that Section 230(c)(1) does not protect Yahoo from a promissory estoppel claim if they promised to remove such content but failed to follow through.

Marc Randazza of the Citizen Media Law Project and Daniel Solove of Concurring Opinions provide overviews of the decision.  Eric Goldman of the Technology and Marketing Law Blog criticizes the opinion for being “filled with gratuitous and dangerous dicta, sloppy reasoning and sloppy language.” (more…)

Maryland’s Highest Court Adopts Dendrite Standard for Unmasking Anonymous Forum Posters in Defamation Actions
By Evan Kubota –- Edited by Miriam Weiler

Independent Newspapers, Inc. v. Brodie
Court of Appeals of Maryland, February 27, 2009, No. 63
Opinion

On February 27th, the Court of Appeals of Maryland reversed a lower court’s order compelling discovery of the identities of five anonymous Internet forum posters in a defamation action. The court had granted certiorari on its own initiative.  While the court’s holding required it to consider only a pleading issue, it went on to offer guidance to lower courts in future cases involving anonymous Internet speakers in a defamation action.  In doing so, the court adopted the standard from Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

Nixon Peabody’s Digital Media/Internet Law Blog offers analysis of the opinion, concluding that the Dendrite test is “emerging as the leading test across jurisdictions in anonymous Internet speaker cases.”  Ars Technica compares this case to other unsuccessful attempts to uncover the identities of anonymous Internet posters. The Washington Post quotes Paul Alan Levy, a lawyer for the consumer advocacy group that argued the case for Independent Newspapers, who characterizes the opinion as reaffirming the First Amendment right to speak anonymously.

Citizens for Greater Centreville links to the oral arguments and appellate brief in the case.

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