Within four days of each other, courts in D.C. and New York issued opinions setting forth the standard necessary to compel the discovery of the identity of anonymous speakers in cases in which the plaintiffs alleged that the anonymous speech defamed them. While they considered identical issues, the courts came to different conclusions regarding the strength of a plaintiff’s case required to unmask an anonymous speaker.
In the New York case, an anonymous blog entitled “Skanks of NYC” posted suggestive pictures of Manhattan-based model Liskula Cohen with captions using the words “skank,” “skanky,” “ho,” and “whoring.” Cohen wanted to sue for defamation, and requested that the blog’s owner, Google, provide the blogger’s identity. When Google refused, Cohen sued to compel it to release the identity so she could proceed with her suit.
On August 17, in Cohen v. Google, New York trial judge Joan Madden granted Cohen’s motion, citing precedent stating that a petition for pre-trial discovery is warranted when “the petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” Noting that the use of the disparaging terms in context with the suggestive images carried “a negative implication of sexual promiscuity,” Madden held that the blog was “reasonably susceptible of a defamatory connotation” and thus was actionable. Since Cohen could not sue for defamation without the blogger’s identity, Madden deemed the identity “material and necessary to the actionable wrong” and ordered Google to disclose it. (The blogger turned out to be an acquaintance of Cohen’s whom Cohen reportedly disparaged to her ex-boyfriend, and is now planning to sue Google for revealing her identity. After determining the acquaintence’s identity, Cohen dropped her lawsuit.)
In the other case, the Anti-Piracy Division of the Software & Information Industry Association (“SIIA”), a trade association for the software and digital content industry, received an anonymous tip alleging that a software company, Solers, Inc., was illegally using unlicensed software. Soon thereafter, SIIA wrote to Solers accusing it of copyright infringement. SIIA eventually dropped its accusation, after which Solers filed a complaint against the anonymous tipster alleging defamation and tortious interference with prospective advantageous business opportunities. It issued a subpoena to SIIA to reveal the tipster’s identity, which SIIA moved to quash.
On August 13, in Solers, Inc. v. Doe, the D.C. Court of Appeals issued an opinion developing a five-part test to determine whether to grant a motion to quash (or enforce) a subpoena seeking the identity of an anonymous defendant, holding that a court must: (1) ensure that the plaintiff has adequately pleaded the elements of the 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. Though the plaintiff had not yet presented evidence sufficient to satisfy this new test, the court granted it leave to do so.
These two cases highlight the different approaches courts have taken on the issue of whether to unmask the identity of an anonymous defendant in defamation cases. In some form, all courts to address the issue have acknowledged the competing tensions between the First Amendment right to anonymous speech and the right to obtain redress against anonymous speakers for defamatory speech, which is not protected under the First Amendment. (Indeed, the lawyer for the purveyor of the “Skanks of NYC” blog to the anonymous authors of the Federalist Papers.) Taking a more pro-plaintiff stance, the New York court’s requirement that a plaintiff “demonstrate that he or she has a meritorious cause of action” to obtain the identity of an anonymous speaker requires little more than a showing that the plaintiff alleged facts sufficient to state a claim: essentially the same low standard required to defeat a motion to dismiss. That standard, however, is merely the first prong of the D.C. test, which significantly also requires that the plaintiff “proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control”: essentially, that the plaintiff show that it can meet the higher burden of defeating a motion for summary judgment.
Courts faced with this issue have trended toward the Solers approach, holding that First Amendment concerns mandate that defamation plaintiffs meet some higher standard than the simple ability to demonstrate that they have alleged a viable claim before a court will grant them access to the identity of an anonymous speaker (See Indep. Newspapers, Inc. v. Brodie (Md. 2009); Doe v. Cahill (Del. 2005); Dendrite Int’l, Inc. v. Doe No. 3, (N.J. Super. Ct. App. Div. 2001)). Under this standard, a common argument by plaintiffs is that without knowledge of the maker of the allegedly defamatory statement, it is hard to prove malice, a constitutionally required element of a defamation action. The Solers court strikes a balance on this issue, however, requiring plaintiffs only to proffer sufficient evidence on each element “that is within their control” and granting the trial court discretion to allow limited discovery before deciding whether to order the identity released. Given the mounting precedent, this middle ground approach is more likely to be adopted by courts considering this issue in the future, which could become more prevalent with the explosion in popularity of the blogosphere and anonymous speech on the Internet.