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.

The D.C. appellate court adopted the following test:

When presented with a motion to quash (or to enforce) a subpoena which seeks the identity of an anonymous defendant, the court should:

(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim,

(2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served,

(3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash,

(4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and

(5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

The court stated that it “[did] not require a separate balancing test at the end of the analysis,” nor “a showing that the plaintiff has exhausted alternative sources for learning the information.”

The anti-piracy division of the Software & Information Industry Association (“SIIA”) received an anonymous online tip in March 2005 that Solers, Inc., a defense industry software company, was using pirated software and conducting activities in violation of copyright. The SIIA then ordered that Solers conduct an internal audit to investigate the allegation or face litigation for copyright infringement. Solers conducted the audit and sent a report stating that they found no infringements, and the SIIA closed its file on Solers.

Solers subsequently filed a complaint against the anonymous tipster, alleging defamation and tortious interference with business opportunities. Solers requested the name of the source from SIIA, who refused based on a “long standing policy of keeping the identity of [its] sources anonymous.” Solers then issued a subpoena to the SIIA to turn over the name, and the SIIA refused and moved to quash the subpoena. A D.C. superior court ruled that the SIIA did not have to turn over the name, noting that because the case would not survive a motion to dismiss, the rights of the anonymous tipster outweighed Solers’ interest in his identity.

In reviewing this ruling, the Court of Appeals stated that anonymous online speech was entitled to First Amendment protection but that defamatory speech was not. The Court then conducted a thorough review of discovery standards in defamation suits seeking the identity of anonymous speakers. Some states, such as Virginia, require only a good faith basis for a plaintiff’s claims for the court to compel a third party to turn over the name of an anonymous speaker. New Jersey courts have held that before the identity is revealed the plaintiff must support each of its claims with evidence. The D.C. court here declined to impose a test balancing the First Amendment rights against the plaintiff’s allegations and instead opted for the heightened standard quoted above, requiring some merit to the allegations and a determination that the anonymous speaker’s identity is important for the case to proceed.

]]> http://jolt.law.harvard.edu/digest/first-amendment/solers-inc-v-doe/feed 0 http://jolt.law.harvard.edu/digest/patent/flash-digest-news-in-brief-16 http://jolt.law.harvard.edu/digest/patent/flash-digest-news-in-brief-16#comments Fri, 24 Jul 2009 19:17:21 +0000 jmilkey http://jolt.law.harvard.edu/digest/?p=165 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.”

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.

The Defendant, Hale, who operated websites offering her life coaching services and maintained a blog, had no background in journalism or connection with any journalist organization. She claimed that she had been investigating criminal activity in the online adult entertainment industry and started a website in 2007 to publish the results of her investigation.  She never posted anything on her site, but communicated her views on porn industry message boards. The plaintiffs, Too Much Media, LLC, manufacture NATS, software used by websites to manage pay-per-click advertising commissions. After news reports that hackers had broken into the NATS database and obtained information about subscribers to various adult websites, Hale posted allegedly defamatory statements on the website Oprano (the self-proclaimed “Wall Street Journal of Porn”) about Too Much Media and its principals.

Despite Hale’s claims that her posting was intended to inform the public of Too Much Media’s improper business actions, the court ruled that her postings were not similar enough to a traditional news media outlet to allow protection under the Shield Law. The Shield Law protects newspersons from having to disclose their sources in legal proceedings. The court stated that message board postings require no fact-checking or poster credentials. The court noted that extending the protections provided to newspersons to bloggers like Hale “would mean anyone with an email address, with no connection to any legitimate news publication, could post anything on the internet and hide behind the Shield Law’s protections.”

This case represents the first time in New Jersey that a blogger has attempted to shield herself under the Shield Law to avoid revealing her sources after making allegedly defamatory comments on an Internet message board. While it seems unlikely that this holding will deny protection to all bloggers, the Daily Record suggests that bloggers who do not have significant ties to news organizations will not be protected by the New Jersey Shield Law. On the other hand, Jonathan Hart stated to the New Jersey Law Journal that the holding of this case is limited to its specific facts and will not extend to other bloggers.

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.”

The district court held that Barnes, whose ex-boyfriend posted fraudulent and harmful personal profiles of her on a website operated by Yahoo, could not maintain a negligence claim against the company.  In so doing, it relied on Section 230(c)(1), which, under certain circumstances, makes Internet service providers immune from liability for material that is published on their website by third parties by not treating the providers as publishers or speakers of that information.  Goldman summarized the district court’s decision.

The Ninth Circuit affirmed in part by recognizing that despite Barnes’ attempt to bypass Section 230(c)(1) by suing Yahoo for negligence rather than defamation, Yahoo would nevertheless be immune from liability if Barnes’ cause of action sought to treat the company as a “publisher or speaker” of harmful material provided by a third party.  The court concluded that Barnes’ tort claim would treat Yahoo as a publisher, noting that “removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.” The negligence claim was therefore barred by Section 230.

However, the court also noted that Barnes’ complaint cited “Yahoo’s ‘promise’ to remove the indecent profiles and her reliance thereon to her detriment,” which it construed as a promissory estoppel claim, a form of liability that lies in breach of contract rather than negligence.  The court determined that “Barnes does not seek to hold Yahoo liable as a publisher or speaker of third party content, but rather as the counter-party to a contract, as a promisor who has breached.”  The potential liability would be based on Yahoo’s manifested intention to remove the content, which it ultimately did not do.  The court held that if Yahoo had made a promise with the constructive intent that it be enforceable, it implicitly agreed to waive its Section 230(c)(1) immunity upon breach of that promise.  The court remanded the case to determine if Yahoo’s assurance of action in fact qualified as such a promise.

Daniel Solove points out that this decision may have negative consequences by deterring Internet service providers from taking a firm stand on removing tortious material from their website.  As the Ninth Circuit noted, “this makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.”  Solove observes that consequently, instead of making a strong effort or providing any assurance that may be construed as a promise, providers will “hide under Section 230’s umbrella by weakening promises to take down harmful content.” 

Eric Goldman suggests that this promissory estoppel decision should not substantially change Section 230 jurisprudence because promissory estoppel claims are very difficult to win.  Additionally, websites will still be able to avoid liability by being careful with their words.  However, he points out that the ability of plaintiffs to raise this claim will still have negative consequences, since it will allow them to “get further into the litigation process (to the summary judgment stage or even to trial) and substantially raise the costs of a 230 defense.”

In a recent update, Goldman also notes that Yahoo, supported by an amicus brief from a coalition of public interest groups, has petitioned for a rehearing en banc.  Yahoo is seeking rehearing of the panel opinion’s holding that Sec. 230 provides an affirmative defense that must be asserted by responsive pleading, and may not justify dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Citizen Media Law Project analyzes the legal merits of the petition and of the Ninth Circuits ruling. CMLP also hosts the petition here.

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.

In 2006, Zebulon J. Brodie filed a complaint in the Circuit Court for Queen Anee’s County, alleging defamation and conspiracy to defame, against Independent Newspapers, Inc. and three John Doe defendants known only by their forum usernames.  The allegedly defamatory statements were made on Independent Newspapers’s Internet discussion forum.  Independent Newspapers was dismissed from the case as it was shielded from liability by section 230 of the Communications Decency Act.  However, in the same order, the judge compelled Independent Newspapers to comply with Brodie’s subpoena to reveal identifying information regarding five Does who had posted on its forum.

In an opinion by Judge Battaglia, the Court of Appeals reversed because of a pleading problem: the plaintiff had not pleaded a valid defamation claim against any of the five Does subject to the subpoena.  The court held that the trial judge abused his discretion when he denied Independent Newspapers’s motion for a protective order/motion to quash.

The court stated that it granted certiorari in the case not merely to sort out the record, but to offer guidance to trial courts facing the issue of whether to require the disclosure of the identity of an anonymous Internet speaker when it is sought in defamation actions.  The Court of Appeals adopted the standard set forth in Dendrite International, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).  This five-part standard requires: (1) that the plaintiff undertake efforts to provide notice to the anonymous posters that they are subject to a subpoena; (2) that the court provide posters a reasonable opportunity to oppose the subpoena; (3) that the plaintiff identify the exact statements alleged actionable; (4) a determination by the court on whether the plaintiff sets forth a prima facie defamation action against the posters; and (5) that the court balance the anonymous posters’ First Amendment rights against the strength of the plaintiff’s prima facie defamation case and the necessity of disclosing the posters’ identities.

In a concurring opinion, Judge Adkins questioned the necessity of the fifth element of the Dendrite standard, arguing that the substantive law of defamation already strikes the proper balance between the competing interests in anonymous speech and reputation.  The judge was concerned that the majority’s test would “invite[] the lower courts to apply, on an ad hoc basis, a ’superlaw’ of Internet defamation that [could] trump the well-established defamation law” and might become an obstacle to pursuit of legitimate causes of actions.

The Court of Appeals’s adoption of the Dendrite standard may make it harder for plaintiffs defamed by anonymous Internet speech to proceed under Maryland law.  Because section 230 of the Communications Decency Act generally shields Internet service providers from defamation arising from defamatory content posted by users, plaintiffs can usually bring defamation claims only against the speakers themselves.  These direct claims will have to survive the five elements of the Dendrite standard in order to identify the anonymous speakers.

Even after a court allows a plaintiff to subpoena identifying information regarding anonymous Internet speakers, he or she may still face an uphill battle.  A recent example involves two female Yale Law School students who were subjected to graphic insults and threats on AutoAdmit, an online discussion forum about law school admission.  Eight months after the court granted the plaintiffs’ subpoena, they were able to identify only several of thirty-nine anonymous online commentators.

Related Reading: Ken S. Meyers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 Harv. J.L. & Tech. 163 (2006).