03_01_Mar_SociallyAware_COVER1aThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media. In this edition, we offer tips for a successful—and legal—advertising campaign; we examine a New York State Appellate Division opinion significantly limiting a personal-injury-case defendant’s access to the plaintiff’s social media posts; we review a court decision highlighting potential risks for companies seeking to exploit works licensed under the Creative Commons regime for commercial use; we take a look at an FTC report intended to help companies minimize the legal and ethical risks associated with their use of big data; we consider the complications that a federal district court opinion may create for companies hosting user-generated content; we explore the FTC’s guidance for businesses that publish advertising that could be confused with editorial content; we discuss seven key things to consider when drafting the terms and conditions for a mobile app in Europe; and we describe the key provisions of the European Commission’s proposed directives concerning a business’s online sale of goods or digital content to consumers.

All this—plus an infographic illustrating the state of the U.S. online music industry.

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MagManWhile discovery of social media information has been commonplace for some time, courts are still struggling with when such discovery should be allowed. While courts generally hold that normal discovery rules apply to social media discovery, at least one judge has identified—and railed against—emerging trends in such cases that impose additional hurdles for litigants seeking discovery of social media information.

Recently, in Forman v. Henkin, a divided New York State Appellate Division panel debated whether requests for Facebook photos are subject to the same standard as any other discovery request. In this personal injury case, the plaintiff, Kelly Forman, alleged that she was injured when a leather stirrup broke while she was riding one of defendant’s horses, sending her tumbling to the ground and causing Forman physical and mental injuries. Forman claimed that her injuries have limited her social and recreational activities and that her “social network went from huge to nothing.”

The trial judge granted the defendant’s request for Forman’s social media activity, including:

(1) “all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial,”

(2) “all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters,” and

(3) “authorizations for defendant to obtain records from Facebook showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages.”

In an unsigned opinion for four of the five justices on the panel, a New York appeals court reversed the trial court and substantially limited the scope of the defendant’s request, allowing discovery only of photographs posted on Facebook “either before or after the accident” that Forman “intends to use at trial”—effectively gutting the discovery request.

Citing long-standing principles of discovery and New York’s civil procedure rules, the panel held that discovery should include only matters “material and necessary” to the action, and the party seeking discovery must demonstrate that the request is “reasonably calculated” to lead to relevant information. In contrast, “hypothetical speculations calculated to justify a fishing expedition” are improper.

Applying these principles, the panel concluded that the defendant failed to establish that the request for either the private photos or messages might produce relevant information.

While the majority resoundingly rejected the accusation that it was applying different discovery rules for social media information, Justice Saxe, dissenting, identified two emerging trends in discovery procedures that he viewed as “problematic”: First, that a defendant is permitted to seek discovery of a plaintiff’s nonpublic social media information “if, and only if, the defendant can first unearth some item from the plaintiff’s publicly available social media postings that tends to conflict with or contradict the plaintiff’s claims”; and second, that trial courts must then “conduct an in camera review of the materials . . . to ensure that the defendant is provided only with relevant materials.” According to Justice Saxe, these two developments, applied in this case and other recent rulings, amount to extra procedural burden on the party seeking social media discovery, and add a substantial and unnecessary burden to often overworked trial courts.

Instead, Justice Saxe advocated applying the traditional discovery approach of any other document request—that is, treating social media information the same as any other document, tangible or electronic. Thus, a demand must have a reasoned basis that the requested category of items bears on the controversy, and must not be overbroad and fail to distinguish relevant from irrelevant items. In most contexts, the defendant describes a type of content relevant to the claimed event or injuries and the plaintiff locates such documents in his or her possession or control. Judge Saxe noted that a party is not normally required to prove the existence of relevant material before requesting it. In sum, “[u]pon receipt of an appropriately tailored demand, a plaintiff’s obligation would be no different than if the demand concerned hard copies of documents in filing cabinets.”

Finally, Justice Saxe pointed out that the majority’s focus on “private” Facebook photos should not be a legitimate basis for treating social media information differently. Such “private” photos are by definition shared with at least a small universe of individuals—a Facebook user’s Friends or a Group—and the expectation of privacy for such posts is low.

Even in light of Justice Saxe’s critique, the majority held firm that the discovery standard they applied is the same for social media information as it is for any other documents and that the request was an unreasonably broad fishing expedition.

This case can perhaps best be understood as a lesson in specificity in social media discovery requests. Courts may simply feel uneasy authorizing broad discovery requests regarding social media, which they may perceive as more personal and private. The panel clearly felt uneasy about the “unbridled” scope of the social media discovery request, and suggested that the dissent’s position is a slippery slope that leads to production of all information stored in “social media, a cell phone or a camera, or located in a photo album or file cabinet,” or even in “diaries, letters, text messages and emails.”

We wonder how the court would have dealt with a more targeted request—for instance, a request for all “private” Facebook photographs after the accident that depict Forman engaging in strenuous physical activity. As we’ve previously discussed, courts have regularly demanded specificity in discovery requests for social media information and have rejected requests that are not narrowly tailored to potentially relevant information.

This case demonstrates that, while the legal standard for discovery may technically be clear, courts are still grappling with the level of procedural protection such information should be afforded. This issue will surely be the topic of future litigation for years to come.

10-14-2015 3-48-13 PMThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we highlight five key social media law issues to address with your corporate clients; we discuss when social media posts are discoverable in litigation; we identify six important considerations in drafting legal terms for mobile apps; we take a look at the clash between bankruptcy law and privacy law in RadioShack’s Chapter 11 proceedings; we examine a recent federal district court decision finding “browsewrap” terms of use to be of benefit to a website operator even if not a binding contract; we outline best practices for employers’ use of social media to screen and interact with employees and conduct workplace investigations; we explore a Washington state court’s refusal to unmask an anonymous online reviewer; and we discuss Facebook’s recent update of its “Notes” feature.

All this—plus an infographic illustrating the growing popularity of video on social media.

Read our newsletter.


iStock_000056895088_FullJudge Richard J. Walsh began his opinion in Largent v. Reed with the following question: “What if the people in your life want to use your Facebook posts against you in a civil lawsuit?” With the explosive growth of social media, judges have had to confront this question more and more frequently. The answer to this question is something you’ll hear quite often from lawyers: “It depends.”

Courts generally have held that there can be no reasonable expectation of privacy in your profile when Facebook’s homepage informs you that “Facebook helps you connect and share with the people in your life.” Even when you decide to limit who can see your photos or read your status updates, that information still may be discoverable if you’ve posted a picture or updated a status that is relevant to a lawsuit in which you’re involved. The issue, then, is whether the party seeking access to your social media profile has a legitimate basis for doing so.

If you’ve updated your Facebook status to brag about your awesome new workout routine after claiming serious and permanent physical injuries sustained in a car accident—yes, that information is relevant to a lawsuit arising from that accident and will be discoverable. The plaintiff in Largent v. Reed learned that lesson the hard way when she did just that and the court ordered her to turn over her Facebook log-in information to the defense counsel. On the other hand, your Facebook profile will not be discoverable simply because your adversary decides he or she wants to go on a fishing expedition through the last eight years of your digital life.

Courts in many jurisdictions have applied the same standard to decide whether a litigant’s Facebook posts will be discoverable: The party seeking your posts must show that the requested information may reasonably lead to the discovery of admissible evidence.

For example, the plaintiff in Zimmerman v. Weis Markets, Inc. claimed that he suffered permanent injuries sustained from operating a fork lift—and then went on to post that his interests included “ridin” and “bike stunts” on the public portion of his Facebook page. The court determined that his public posts placed the legitimacy of his damages claims in controversy and that his privacy interests did not outweigh the discovery requests.

In contrast, in Tompkins v. Detroit Metropolitan Airport, the plaintiff in this slip-and-fall case claimed back injuries in connection with an accident at the Detroit Metropolitan Airport. The defendant checked the plaintiff’s publicly available Facebook photos (i.e., photos not subject to any of Facebook’s available privacy settings or restrictions), and stumbled upon photos of the plaintiff holding a small dog and also pushing a shopping cart. The court determined that these photos were in no way inconsistent with the plaintiff’s injury claims, stating that if “the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account.”

The Tompkins court recognized that the plaintiff’s information was not discoverable because parties do not “have a generalized right to rummage at will through information” a person has posted. Indeed, the defendants sought the production of the plaintiff’s entire Facebook account. Their overbroad and overreaching discovery request was—and is—common among parties seeking access to their opponents’ Facebook data.

In response to these overbroad requests, courts routinely deny motions to compel the production of a person’s entire Facebook profile because such requests are nothing more than fishing expeditions seeking what might be relevant information. As the court in Potts v. Dollar Tree Stores, Inc. stated, the defendant seeking Facebook data must at least “make a threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.”

The Tompkins and Potts decisions mark important developments in Facebook e-discovery cases. They establish that a person’s entire Facebook profile is not discoverable merely because a portion of that profile is public. In turn, Facebook’s privacy settings can provide at least some protection against discovery requests—assuming that the user has taken efforts not to display photos publicly that blatantly contradict his or her legal claims.

When it is shown that a party’s Facebook history should be discoverable, however, the party must make sure not to tamper with that history. Deactivating your Facebook account to hide evidence can invite the ire of the court. Deleting your account outright can even result in sanctions. The takeaway is that courts treat social media data no differently than any other type of electronically stored information; what you share with friends online may also be something you share with your adversary—and even the court.

Facebook: Fact or fiction? These days, courts are more and more frequently faced with disputes over whether, as part of the discovery process, a litigant should be entitled to view the opposing party’s social media posts. As we’ve discussed, some courts deciding physical and emotional injury claims have held that the photos and status updates that the plaintiffs in those cases posted to Facebook were relevant to proving or disproving those claims. But are they always? A recent column in Slate points out that some judges and experts are questioning whether a person’s social media posts are adequate reflections of his or her emotional well-being. In one 2013 case over alleged disability discrimination—the plaintiff claimed her work supervisor mocked her after she told him she’d been diagnosed with adult Attention Deficit Hyperactivity Disorder—a federal district court judge in New York held that “The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress… For example, a severely depressed person may have a good day or several good days and choose to post about those days and avoid posting about moods more reflective of his or her actual emotional state.” We at Socially Aware tend to agree with this more skeptical view of the extent to which one’s “social” life reflects one’s real life. After all, if a woman can fake an entire vacation on Facebook, many of the platform’s users are likely posting status updates and pictures that are out of sync with their actual moods.

Cutting words. Stories about people being fired or having a job offer rescinded because of their social media missteps have been around almost as long as social media itself, but they usually involve “what were they thinking?” types of behavior. We recently came across one that is a little less clear-cut. An engineer who’d just gotten job offers from Uber and Zenefits tried to crowdsource information that would help him decide between the two employers by posting what he considered to be the pros and cons of each opportunity on Quora, a Q&A social network that allows users to pose questions to the community. He said good things about both companies, but in his “cons” list for Zenefits, he wrote, “My biggest problem with Zenefits is that it isn’t a buzzword like Uber. Most people won’t know what Zenefits is (or so I think). I think that this isn’t as exciting a brand name to have on your resume when applying to the likes of Google.” Zenefits CEO and co-founder Parker Conrad saw the Quora post and responded, right on the thread: “Definitely not Zenefits (n.b.—we are revoking the questioner’s offer to work at Zenefits),” he wrote. “We really value people who ‘get’ what we do and who *want* to work here, specifically. It’s not for everyone, but there are enough ppl out there who do want to work here that we can afford to be selective.” Conrad later edited his response, deleting the part about revoking the engineer’s offer, but his decision stands: The engineer is no longer welcome at Zenefits. Reactions on Twitter went both ways, The Washington Post reported. And some commentators felt that both parties were at fault.

Here today . . . Perhaps inspired by social media users’ concerns that their posts will be used against them in the ways we’ve just described—and, in the case of Cyber Dust, billionaire investor Mark Cuban’s receipt of a subpoena for his own text messages—new disappearing messaging apps are springing up all the time. One that recently got the attention of the crowd at a tech conference in New York is the photo-sharing app Rewind. Rewind allows you to create photo timelines through which the members of your network can scroll. As a result of the scrolling feature, a whole set of photos only takes up the space of a single photo in users’ feeds. The posts vanish after 24 hours. According to Tech Crunch, by making the photos disappear, the app’s creators hope “to elicit the same sort of spontaneity as Snapchat Stories,” which have been heralded as the future of social media.







0518SAImageAs social media has become ubiquitous, courts are wrestling with more discovery disputes involving social media accounts.

In a recent case, Crowe v. Marquette Transportation Co. Gulf-Inland, LLC, the plaintiff deactivated his Facebook account in an effort to be able to claim that he was no longer on Facebook. A federal court in Louisiana rejected this ploy, ordering the plaintiff to turn over all of his Facebook data to the defendant.

Here’s the background story: On May 19, 2014, Brannon Crowe sued his employer, Marquette Transportation. Crowe claimed that, in April 2014, he had an accident at work that “resulted in serious painful injuries to his knee and other parts of his body.” Crowe sued for pain and suffering, medical expenses, lost wages, past and future disability, and other special damages.

But Crowe may have unwittingly shot himself in the foot (or maybe the knee). The reason? Facebook.

Around the time Crowe suffered his injuries, he sent a Facebook message to a friend saying that he had actually hurt himself while on a fishing trip. How Marquette Transportation got its hands on the message is unclear. Nonetheless, the message led Marquette Transportation to seek other Facebook information from Crowe in discovery. On October 17, 2014, Marquette Transportation specifically requested “the Facebook history of any account(s) that [Crowe] had or has for the period commencing two (2) weeks prior to the incident in question to the present date.”

Crowe objected on several grounds. First, he claimed that his account had been “hacked.”

Then he suggested that the account associated with the fishing trip message was not his because the name on the account was “Brannon CroWe” and he does not capitalize the “W” in his last name.

Finally, Crowe claimed that he did not “presently have a Facebook account.” When questioned about that statement in a deposition, Crowe testified that, as of October 2014, he no longer had a Facebook account. Thus, Crowe was technically telling the truth; he had deactivated his account on October 21, 2014 (four days after Crowe received the discovery request to produce his Facebook account data).

Deactivating your Facebook account, however, is not the same as deleting your account. As the Court noted, “It is readily apparent to any user who navigates to the page instructing how to deactivate an account that the two actions are different and have different consequences.” Under Facebook’s terms, deactivation simply means “your profile won’t be visible to other people on Facebook and people won’t be able to search for you,” and that, upon reactivation, “[y]our profile will be restored in its entirety.” In contrast, deleting your Facebook account “means you will not ever be able to reactivate or retrieve any of the content or information you’ve added,” and there is “no option for recovery.”

As to Crowe’s claim that he was no longer on Facebook, the Court was having none of it. The court stated that “it is patently clear from even a cursory review that this information should have been produced as part of Crowe’s original response. This production makes it plain that Crowe’s testimony, at least in part, was inaccurate. That alone makes this information discoverable.”

In short, the Court held that Crowe’s Facebook-related information was discoverable because Crowe had deactivated his account to keep the evidence from his employer—and did so only after he received a discovery request.

Crowe may have inadvertently saved himself at least some trouble with the Court by deactivating his account rather than deleting it. This duty to preserve evidence in litigation extends to social media information and is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation. As soon as he placed the source of his injuries at issue, Crowe triggered the duty to preserve. Deleting relevant social media data can result in sanctions against the deleting party because the information is not recoverable, which implicates spoliation of evidence issues. In contrast, Crowe’s Facebook data was still accessible upon a simple re-login.

Even though Crowe did not delete his account, the Court was obviously unhappy with Crowe. The Court found that Crowe unnecessarily delayed the proceedings and wasted the Court’s time by deactivating his account. And, ultimately, the Court ordered Crowe to produce all information in his Facebook account to his opponent in its entirety.

This case serves as a lesson that nothing good will come from deleting or deactivating your Facebook account to hide evidence. Even if deactivating a Facebook account to conceal damaging evidence does not constitute spoliation, because the data is ultimately recoverable, courts will inevitably come down hard on efforts to conceal evidence, even ham-handed and harebrained efforts.

The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we summarize the current status of various state laws restricting employer access to the personal social media accounts of applicants and employees; we explore how driving while wearing Google Glass is butting up against the law, and examine recent attempts to legislate the use of Glass on the road; we report on various approaches U.S. courts are taking to address social media-related discovery challenges and to avoid social media fishing expeditions; we take a look at the legal landscape of so-called “revenge porn” and the laws victims are leveraging (or may be able to leverage in the future) in order to fight back; we discuss how UK and European copyright law is being applied to common Internet social and business practices, including the most basic of online activities—hyperlinking; and we highlight a puzzling recent Ninth Circuit decision that has operators of online video services and copyright experts alike scratching their respective heads.

All this—plus a collection of thought-provoking statistics about social media marketing…

Courts across the United States have now made clear that discovery of social media is fair game. At the same time, courts have consistently found that litigants will not be permitted to engage in social media fishing expeditions; rather, litigants will be required to show that the sites likely contain relevant material. We explore below various approaches taken by courts to address social media-related discovery challenges.

Some courts have simply quashed a litigant’s request for social media-related discovery for failure to show relevance to the dispute. In Kennedy v. Contract Pharmacal Corp., the plaintiff sought a variety of gender discrimination-based damages. The defendants sought to compel broad discovery from the plaintiff’s social media sites. For instance, the defendants broadly requested “[a]ll documents concerning, relating to, reflecting and/or regarding Plaintiff’s utilization of social networking sites.” Denying a motion to compel discovery, the U.S. District Court for the Eastern District of New York held that “[t]here is no specificity to the requests and no effort to limit these requests to any relevant acts alleged in this action.” Continue Reading U.S. Courts’ Evolving Approaches to Social Media E-Discovery

The Seventh Circuit held recently in Brownmark Films, LLC v. Comedy Partners that, under certain circumstances, a trial court may dismiss a copyright infringement case based on a fair use defense prior to discovery.

Over the years, the satiric Comedy Central cartoon program South Park and its creators have developed a reputation for biting social commentary. Past targets include World of Warcraft players, Occupy Wall Street, and the History Channel’s recent obsession with swamp creatures and World War II. In the show’s 12th season, in an episode entitled “Canada on Strike,” South Park took on the world of viral videos. The episode included a parody of a real-world viral video called “What What (In the Butt)” (“WWITB”) (Authors’ Note: possibly NSFW).  South Park’s version visually approximates the original, but plays on the naïveté of the starring nine-year-old South Park character, Butters, by using more childish elements; for example, by portraying Butters dressed up as a teddy bear and a daisy.

Brownmark, the copyright holder for the original WWITB video, filed suit for copyright infringement against South Park Digital Studios and others (“South Park Studios”). South Park Studios responded with a motion to dismiss based on an affirmative fair use defense.  Although Circuit Judge Cudahy noted that courts should generally refrain from dismissing cases based on affirmative defenses, he wrote that the reason for this reticence is that defenses typically turn on facts that emerge during discovery and trial.  In this case, though, the district court ruled that only two pieces of evidence were needed to decide the question of fair use: the original WWITB video and South Park Studios’ parody.

The district court granted South Park Studios’ motion and dismissed the case. The Seventh Circuit affirmed, noting that “[o]ne only needs to take a fleeting glance at the South Park episode” to determine that its use of the WWITB video is meant “to lampoon the recent craze in our society of watching video clips on the internet . . . of rather low artistic sophistication and quality.” Thus, fair use.

Other commentators support the decision, noting that the focus of the parody is not the specific viral video, but rather that the parody is a commentary on society’s consumption of such Internet videos generally. It is worth noting that such arguments have not always found favor in the courts. For example, in the well-known Cat Not in the Hat! case, a district court found—and the Ninth Circuit affirmed—that a book entitled The Cat Not in the Hat! A Parody by Dr. Juice was not shielded as fair use. The book “mimic[ked] the distinctive style” of a Dr. Seuss book, using repetitive, simple rhymes to tell the story of the O.J. Simpson double-murder trial. The general idea is that a use is not fair if, in the words of the U.S. Supreme Court in Campbell v. Acuff-Rose, the alleged infringer uses the original work solely “to get attention or to avoid the drudgery in working up something fresh.” In Brownmark, it seems, the Seventh Circuit viewed South Park’s parody as something more than mere drudgery avoidance.

Going forward, Brownmark changes little, if anything, with respect to the substance of the fair use analysis. But Brownmark does show that courts may—in at least some fair use cases and at least in the Seventh Circuit—grant a motion to dismiss prior to discovery. While Brownmark involved a seemingly easy fair use case in the defendants’ favor, it will be interesting to see whether future courts will grant motions to dismiss where the fair use analysis is less obvious. In any event, copyright infringement plaintiffs should be aware that the road to discovery where a defendant raises a fair use defense may not be quite as smooth as it used to be.

Plenty of press attention has been given to social media sites’ views on whether their users can use “handles” or pseudonyms instead of their real names.  But much of the Internet’s social conversation remains dependent upon that dot-com staple, the anonymous message board.  In the recent case of Varrenti v. Gannett Co., Inc., a New York trial court had an opportunity to opine on the standard for compelling an online service provider (OSP) to disclose the identities of anonymous Internet posters in view of competing First Amendment considerations.  However, the court punted on that issue, instead basing its decision on the far narrower question of whether plaintiffs stated a prima facie cause of action against the anonymous defendants — and leaving the standard for discovery of anonymous Internet users’ real identities unsettled in New York, just as it is nationwide.

A variety of tests for compelling the disclosure of the identity of an anonymous Internet user have emerged over the past decade.  One approach is the five-factor balancing test established by a New York federal court in Sony Music Entertainment Inc. v. Does 1-40.  Under the Sony Music test, a court is required to weigh the following five factors in order to assess the need to disclose an anonymous Internet user’s identity:

  • Is there a concrete showing of a prima facie claim of actionable harm?
  • Is the discovery request sufficiently specific to lead to identifying information?
  • Is there an absence of alternative means to obtain the subpoenaed information?
  • Is there a central need for the subpoenaed information to advance the claim?
  • Does the anonymous Internet user have a reasonable expectation of privacy?

An OSP’s terms of service agreement can play into the fifth prong of the Sony Music test.  In Sony Music, for example, the OSP’s terms of service specifically reserved the right to disclose any information necessary to satisfy any law.  Because the same terms also expressly prohibited users from transmitting material in violation of copyright law, the court found that the anonymous defendants had little expectation of privacy when using the service to download and distribute over peer-to-peer networks, sound recordings owned by third parties without permission of the copyright holders. Such a limited expectation of privacy, in conjunction with the plaintiff’s strong prima facie claim of copyright infringement and the plaintiff’s demonstrated need for the identifying information to advance its claim, outweighed any limited First Amendment protections that the service users might otherwise have.

Another test for whether the disclosure of an anonymous Internet user’s identity can be compelled, is the four-factor test invoked by the Appellate Division of the New Jersey Superior Court in Dendrite International, Inc. v. Doe No. 3.  In the lower court, Dendrite had sought to discover the identity of an anonymous poster on a Yahoo! Internet message board devoted to a discussion of Dendrite’s stock performance.  Dendrite alleged that the poster defamed the company and misappropriated trade secrets by making false statements about Dendrite having changed its revenue recognition policy, Dendrite’s contracts being structured to defer income and Dendrite’s lack of competitiveness, as well as by alleging that Dendrite’s president was secretly and unsuccessfully “shopping” the company.  The lower court judge found that the plaintiff was not entitled to discovery of the anonymous poster’s identity because it had failed to show harm caused by the anonymous postings — a required element for stating a prima facie case of defamation.

On review, the Appellate Division adopted, with modifications, a four-factor test that had been applied by the federal district court in the Northern District of California in Columbia Insurance Company v. Seescandy.com.  Under this test, a trial court is permitted to order the disclosure of an anonymous Internet user’s identity if:

  • The plaintiff makes efforts to notify the user that he or she is the subject of a subpoena, and affords the user a reasonable opportunity to file and serve opposition;
  • The plaintiff identifies and sets forth the exact statements purportedly made by the anonymous user that allegedly constitute actionable speech;
  • The plaintiff has asserted a prima facie cause of action against the defendant and produced sufficient evidence to support each element of the action; and
  • The strength of the prima facie case presented, and the need for the disclosure of the defendant’s identity, outweigh his or her First Amendment right of anonymous free speech.

The fourth prong of this Dendrite test is intended to be a “flexible, non-technical, fact-sensitive mechanism” that gives courts ample discretion to evaluate whether disclosure of the anonymous user’s identity is necessary.  Therefore, even though the lower court judge in Dendrite may have taken a stricter approach than normal to the “harm” element of the test (particularly when applying motion-to-dismiss standards), the Appellate Division determined that the judge’s analysis of the claim was still consistent with that element of the test — and after determining that the record supported the lower court’s finding that there was no nexus between the anonymous postings and fluctuations in Dendrite’s stock prices, it affirmed the finding and refused to permit discovery of the anonymous poster’s identity.

At least one court has found that the nature of the speech involved should be the driving force in selecting the test for discovering the identity of an anonymous Internet user.  The Ninth Circuit has held that a stricter test for unmasking “John Doe” Internet publishers is appropriate when the speech at issue is non-commercial.

Under this test, originally established by the Delaware Supreme Court in Doe v. Cahill, a plaintiff may discover an anonymous speaker’s identity by both giving or attempting to give notice to the speaker, and presenting a prima facie case that can survive a hypothetical motion for summary judgment.  As reported in our August 2010 issue, the trial court in Quixtar, Inc. v. Signature Management TEAM, LLC, used this test to order the disclosure of the identities of anonymous speakers who had made allegedly false and disparaging statements about the plaintiff company on third-party blogs and in online videos.  On appeal, the Ninth Circuit found that the district court’s application of the Cahill test was not appropriate because the speech involved related to a non-compete provision in a contract, which was not express political speech entitled to greater protection.  However, because the trial court’s decision to apply the Cahill test did not constitute clear error, the Ninth Circuit nonetheless refused to vacate the trial court’s order.  It is unclear whether courts in other jurisdictions have adopted the approach of choosing a test based on whether the speech at issue is commercial or non-commercial. 

The recent Varrenti decision reminds us that the assertion of a prima facie cause of action remains a key factor in determining whether the identities of anonymous Internet users are discoverable, no matter which test reigns.  In Varrenti, members of the Village of Brockport Police Department brought a defamation action against the Democrat & Chronicle, a local newspaper publisher in Rochester, New York, and four Internet users who posted anonymous comments on the newspaper’s website about the plaintiffs’ competence, integrity and actions.  The plaintiffs argued that the Sony Music test should apply, while the defendant argued that the Dendrite test should apply.  The New York Supreme Court elected not to address the issue of which test applied, instead focusing on the common factor from both tests — that is, whether the plaintiffs had stated a prima facie cause of action for defamation.  Because the tone and objective of the anonymous statements were critical of the plaintiffs and the comments were published in a web forum that invited newsreaders to share opinions, the court found as a threshold matter that the comments were protected expression that could not form the basis of a defamation claim, and that, therefore, no prima facie case had been stated.

In basing its decision solely on the context in which the comments were made, the Varrenti court avoided addressing other test factors, bringing no further clarity on which standard for discovering the identity of anonymous Internet users should apply.  Until the various standards for discovery of anonymous Internet users’ identity converge, then, the question of whether an OSP can be compelled to disclose an Internet user’s identity rests largely on the plaintiff’s ability to state a prima facie claim of actionable harm — worth keeping in mind for companies pursuing a claim against a user of a message board or other social media service.