As demonstrated in several recent decisions, courts apply a range of tests when responding to litigants’ requests to endorse efforts to uncover the identity of people who anonymously communicate on the Internet.
When litigants believe that anonymous online speakers, such as bloggers, are posting harmful comments about them, they often attempt to unmask the speakers' identities. This reaction frequently occurs in defamation cases or when a party violates a gag order during trial. When litigants submit such requests, the court must undertake the difficult task of balancing the anonymous speaker’s First Amendment rights with the litigant’s interest in discovering evidence that may generate legal relief.
In 2005, the Delaware Supreme Court articulated a two-prong test to determine whether an anonymous Internet speaker’s identity should be disclosed in the case of Doe v. Cahill (884 A.2d 451 (Del. 2005)). The first prong of the Cahill test requires the party seeking disclosure of the speaker’s identity to notify the speaker of the attempted disclosure and inform the speaker he or she may contest disclosure. A party can satisfy this requirement in a defamation action by posting a notice on the same message board where the allegedly defamatory statement was originally posted (Id. at 460-61). The second prong requires the party seeking disclosure to prove to the court that the party’s case could survive a summary judgment motion. In other words, the party must show that it has enough evidence within its control to raise a genuine issue of material fact on each element of its claim (Id. at 463).
A number of recent cases, all decided in 2007 and 2008, build on the principles articulated in Cahill. In In re Does 1-10, a Texas hospital brought an action against an anonymous blogger, who was posting what hospital officials believed were defamatory statements about the hospital on the Internet. The hospital claimed the blogger “unfairly disparage[d] and criticize[d] the Hospital” and disclosed confidential patient information (In re Does 1-10, 2007 WL 4328204, *1 (Tex. App.—Texarkana, Dec. 12, 2007)). A Texas appeals court adopted the second prong of Cahill, holding that the hospital had to prove its claim could survive a summary judgment motion before it could obtain disclosure of the blogger’s identity (Id. at *11.). The court remanded the case to the trial court to apply the test.
In another case, an Arizona appeals court not only applied the Cahill two-prong test, but also added a third prong (Mobilisa, Inc. v. John Doe 1 and The Suggestion Box, Inc., (Ariz. Ct. App. Nov. 27, 2007), ¶ 24). The Arizona court’s third prong requires a court to examine the interests each party has in supporting or preventing disclosure of the speaker’s identity and balance those interests. The court required a balancing component because it believed the Cahill test did not provide sufficient protection to the anonymous speaker. Under the Cahill test, for example, the party seeking disclosure could compel disclosure of the anonymous speaker’s identity, even if discovering the identity would do little to advance the party’s case and disclosure would harm the anonymous speaker. Thus, the Arizona court believed the court should take each party’s interest into account when deciding whether disclosure is appropriate.
In Manhattan, a New York state trial court judge applied a test similar to that in Cahill, but refused to decide how much proof a party must produce to satisfy the second prong of the test (Matter of the Application Pursuant to CPLR 3102 of Pamela Greenbaum, 2007 N.Y. Misc. LEXIS 7274 (New York Cty. October 23, 2007)). There, a school board member sought to bring a defamation claim against an anonymous blogger, alleging the blogger falsely accused her of bigotry. The court held that an anonymous speaker must be given notice of potential disclosure and an opportunity to respond.
The New York court also agreed that, as a second step, a party seeking disclosure must show that it has a “meritorious” case. The court noted that New York’s civil procedure rules already require a party to show such proof; however, the court declined to define how much proof a party must show. The plaintiff’s defamation case was so weak, the court believed, that she could never satisfy the second prong regardless of the amount of proof required. It is unclear whether the court would have required a quantum of proof as high as that needed at the summary judgment stage.
Additionally, a New Jersey trial court refused to allow disclosure of an anonymous blogger’s identity in Township of Manalapan v. Moskovitz (for a transcript of the judge’s oral decision in this case, see http://www.eff.org/files/filenode/manalapan/1221moskovitzpmp.pdf). In that case, a New Jersey township sued its former attorney, Moskovitz, for legal malpractice in connection with the township’s acquisition of polluted land. The township sought to learn the identity of an anonymous blogger, who had been posting anti-township comments on the Internet during the trial. The township claimed the blogger was none other than Moskovitz himself and that in posting comments Moskovitz was violating a gag order. The court refused to allow disclosure of the blogger’s identity, holding that the township failed to demonstrate that it was reasonably calculated to lead to discoverable evidence. The court noted the township presented no facts to support its allegation that the blogger was Moskovitz other than the fact that the blogger called himself or herself “da Mosked man” in the blog.
Finally, in Krinsky v. Doe 6, one of the most recent cases on this topic, the court lowered the Cahill standard, and required plaintiffs to make a prima facie case for libel in order to support a subpoena to uncover the defendant’s identity (159 Cal. App. 4th 1154, 1171 (Cal. Ct. App. 2008)). Decided by the California Court of Appeals in February 2008, Krinsky arose out of “offensive and demeaning” comments made on a Yahoo! Finance message board about Lisa Krinsky, the then-president of SFBC International, Inc., a drug development company (Id. at 1179). Krinsky sued defendants for libel “based on false and misleading Internet statements imputing dishonesty, fraud, improper professional conduct, and criminal activity to plaintiff” (Id. at 1159). The court found that Krinsky did not present a prima facie case of libel, and thus the subpoena to discover the identity of one of the defendants should have been quashed (Id. at 1179). In making that finding, the court specifically rejected the Cahill analysis, finding it “unnecessary and potentially confusing to attach a procedural label, whether summary judgment or motion to dismiss, to the showing required of a plaintiff seeking the identity of an anonymous speaker on the Internet,” and instead adopted the standard of a prima facie showing (Id. at 1170-71).
These decisions confirm that anonymous speakers on the Internet are entitled to protections when their First Amendment rights are implicated by disclosure of their identities. Similar cases will undoubtedly appear in courts across the country in the near future, providing courts more opportunities to refine the Cahill test and similar legal standards.