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.