There have been a few interesting legal cases in the past week dealing with issues of anonymous speech on the Internet that I thought my readers might find interesting:
Model Identifies Blogger Who Called Her a "Skank"
Model Liskula Cohen recently filed a John Doe lawsuit to find the identity of a blogger who ran a website "Skanks in NYC". Apparently the lawsuit was over defamation, and the courts ordered Google to release the name of the blogger to Cohen.
Once Cohen found out who it was, she personally called the blogger.
"I said, 'I just want you to know that if I've ever done anything to you to actually deserve this, that I'm really very sorry. I'm sincerely apologetic,'" Cohen said.
So far Cohen has refused to release the name of the blogger.
The Wartburg Watch blog has written an interesting article on Cohen's story, comparing how Cohen handled her blogger with how Mac Brunson handled his.
DC Court of Appeals Sets Guidelines for Protecting Anonymous Speech
In a recent defamation and copywright lawsuit (Solers, Inc. v. Doe), the DC Court of Appeals established a stringent standard for lower courts when a plaintiff attempts to unmask anonymous speakers on the Internet. About the case, the court said:
“[this case] presents us with issues of first impression – whether the First Amendment protects the anonymity of someone such as Doe, and, if so, under what circumstances a plaintiff such as Solers may invoke court processes to learn Doe’s identity and have its day in court."
The court emphasized that a plaintiff "must do more than simply plead his case" to unmask an anonymous speaker claimed to have violated the law.
What is the stringent standard established by the court?
1. Ensure that the plaintiff has adequately pleaded the elements of a 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.
5. Determine that the information sought is important to enable the plaintiff to proceed with his/her lawsuit.
The court noted that states vary widely in what is required to unmask an anonymous speaker, but the court noted lax requirements in this regard "...may needlessly strip defendants of anonymity in situations where there is no substantial evidence of wrongdoing, effectively giving little or no First Amendment protection to that anonymity."
Sounds reasonable to me. If an anonymous blogger is thought to be breaking a law, defaming someone, let the plaintiff have the backbone to seek the anonymous blogger's identity through due process: file the lawsuit, demand the person's identity through a subpoena so that legal action can be taken against him/her, and give all the parties (plaintiff, defendant, and Internet parties) an opportunity to argue the subpoena's validity.
Besides, what other legal option is there, other than calling the police in an attempt to open a criminal investigation into the blogger - with the hopes that the investigation might lead to subpoenas being issued by the criminal investigator. If someone can do that, well the due process can be by-passed very easily. But of course success requires the criminal investigator is willing to then release the name of the blogger whether or not there was an actual crime committed.
And it would help, presumably, if the investigator has a personal friendship with the plaintiff - most assuredly the identity will be found and given up.
For further reading on the DC Court of Appeals Case:
Baptist Planet - discusses relevance of the case to the FBC Jax Watchdog case.
Citizen Media Law Project
Reporter's Committee for Freedom of the Press