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)
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.