What To Do When A Website Is Served With A Subpoena To Unmask An Anonymous Defamatory Commenter

Monday, December 6, 2010 - 00:00

Many websites today contain social network, community or comment sections in an effort to provide user-generated content (UGC). Such UGC may consist of comments, blogs, photos or other items. The goal is to attract traffic and deepen customer relationships.

The Problem Scenario

Problems can arise, however, when someone using an anonymous screen name makes a post that is allegedly defamatory or commercially disparaging, and the target of the post brings a lawsuit against the poster. Sometimes the lawsuits are filed as "John Doe" lawsuits, and are followed by a subpoena to the website demanding that it disclose the real identity of the poster. (Sometimes the lawsuits name the website as a defendant, but such claims face a tough hurdle in Section 230 of the Communications Act, which provides websites with a strong defense against liability for defamatory postings by users.)

A website that receives a third-party subpoena in civil litigation asking to "unmask" the identity of an allegedly defaming poster faces some tricky legal considerations. To make matters more difficult, courts across the country have adopted varying approaches, and the legal standard may vary from place to place. In practice, this means that the appropriate response may depend on a number of factors, including the nature of the comment that is the subject of the litigation, the jurisdiction hearing the case and even the jurisdiction in which the website operator conducts business.

First, it is essential for the host website to check what its privacy policy says about disclosing information about users. A typical website privacy statement contains language describing the business's policy in responding to requests for information about users. At least in theory, commenters relied on that statement when posting UGC, including the allegedly defamatory materials. Some companies state that they will attempt to contact the user before divulging an identity, at least where legally permitted to do so; others do not. However, a statement that it will do so may give rise to a subsequent breach of contract or similar claim by an unmasked poster. The purpose of such notification is to allow the affected user an opportunity to oppose the discovery.

Protecting Anonymous Speech

Suppose the website does not want to comply with the subpoena. After all, routinely unmasking commenters may be bad for a business that relies on user postings to generate traffic. Such a business may not want to develop a reputation for disclosing identities without first contesting the discovery request.

What then arises is a clash between a party's need for discovery in civil litigation and the nation's time-honored support of anonymous speech as a matter of constitutional right under the First Amendment. (A motion to quash by the commenter would raise similar legal issues.) To date, courts have struggled to develop a consistent test that balances the freedom to speak anonymously against the need of civil litigants to obtain discovery. At this stage in the development of the law, the standard that applies in one case may differ from the standard applied in the next. Websites should be sure to consult with their legal counsel.

One important factor is the nature of the comment that is the subject of the litigation. Courts have drawn distinctions between comments that sound like "political" speech (along the lines of "Candidate X is a terrorist sympathizer") and those that are more commercial in nature ("Product Y is a lemon"). For example, in Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court adopted the most severe standard by holding that a plaintiff in a case involving political speech must demonstrate that the complaint could survive a motion for summary judgment in order to force an Internet service provider to disclose who posted anonymous comments.

If the disparaging speech is commercial in nature, courts are holding that it receives the lessened First Amendment protection accorded commercial speech generally. Beyond that, however, little consensus has emerged in the case law. Courts have developed at least two distinct tests for evaluating third-party subpoenas, and a few courts have held that no special test is needed. A business's response must take into account what jurisdiction applies and which test has been adopted in that jurisdiction.

Recently, for example, the U.S. Court of Appeals for the Ninth Circuit ruled that the Cahill "motion for summary judgment" standard is too high for a discovery order in a commercial speech case. Anonymous Online Speakers v. U.S. District Court , (611 F.3d 653 (9th Cir. 2010) (commercial litigation brought by Quixtar, Inc.). Although on the facts, the Court of Appeals held discovery of the identity of the anonymous speaker would be justified even under the Cahill standard, it limited Cahill to political speech cases in the Ninth Circuit.

Some courts have required in commercial speech cases only that a plaintiff make a showing sufficient to survive a motion to dismiss. Columbia Insurance Co. v. Seescandy.com , 285 F.R.D. 573 (N.D. Cal. 1999); Maxon v. Ottawa Publishing Company , No. 3-08-0805 (Ill. App. June 1, 2010). This is considered the lowest threshold for discovery. Some courts have required plaintiffs to make a prima facie showing of the strength of their claim before ordering disclosure of the anonymous commenter's name. Dendrite International, Inc. v. Doe No. 3 , 775 A.2d 756 (N.J. App. 2001).

Check Jurisdiction

Finally, it is a good idea to confirm that the court issuing the discovery order against the third-party website has jurisdiction to do so. Several class action lawsuits filed recently in Georgia claim that Internet service providers (ISPs) based in California improperly disclosed information in response to subpoenas issued by state (not federal) judges. The cases allege that the state discovery orders have no legal effect outside of the issuing state, and that by disclosing information the ISPs violated the federal Stored Communications and Wiretap Acts. Although these cases are barely underway, they serve as reminders that a third party served with a discovery order should check to see whether the issuing authority has jurisdiction to do so.

Please email the author at wbaker@wileyrein.com with questions about this article.