Court Urged to Apply Anonymous Source Test in Case of Anonymous Online Poster
In deciding whether to order the disclosure of the identity of an anonymous poster, courts should apply a test similar to that for deciding whether to order the identification of anonymous sources by reporters, according to a memorandum filed in the U.S. District Court for the Eastern District of Virginia Oct. 13 by free speech organizations in support of a motion to quash a subpoena ordering America Online Inc. to reveal the identity of one of its subscribers (Doe v. Hritz, E.D.Va., Docket No. CA 00-71-MC, memorandum filed 10/13/00).
The Electronic Frontier Foundation and Public Citizen filed a motion to quash a subpoena presented to AOL on behalf of an anonymous poster who posted several messages on a Yahoo! message board.
The memorandum in support of the motion argues that before enforcing such a subpoena, the court should first require the person requesting the subpoena to show that (1) the issue on which the information requested is sought goes to the heart of the case of an action brought to asserts the rights of a plaintiff, (2) that the party seeking disclosure can prevail on all the necessary elements of his case therefore making the disclosure of the identity of the source necessary, and (3) the party seeking disclosure has exhausted all other means of proving this part of the case.
The person seeking the disclosure of the poster's identity is John Hritz, executive vice president and general counsel of AK Steel Holding Corp., an automotive and appliance parts manufacturer with factories in Ohio and Kentucky.
Yahoo! provides a message board for all publicly traded companies where anyone with access to the Web can post messages being identified only by a "handle" of his choice. Under the user name sanibel_us, the Jane Doe who is the subject of the lawsuit posted about 35 messages on the AK Steel bulletin board including one in which she said Hritz would "litigate the time of day."
Ohio Permits Pre-Complaint Discovery
Under an Ohio rule that allows the an individual to seek discovery to obtain information about a potential legal adversary, Hritz obtained permission from the Court of Common Pleas in Butler County, Ohio, to seek discovery in other states, claiming that sanibel_us's posts "contain[ed] threatening, libelous, and disparaging remarks about Mr. Hritz."
A subpoena issued pursuant to Hritz's request required Yahoo! Inc. to turn over the information it got from sanibel_us when she opened her Yahoo! account. That information included an e-mail address with the domain aol.com. Hritz then obtained a subpoena from the Circuit Court of Loudoun County, Virginia, where AOL is based, ordering AOL to identify the e-mail address's owner.
The poster retained the EFF and Public Citizen to represent her in the case and they acted to remove the case from the Butler County court to the U.S. District Court for the Southern District of Ohio on diversity grounds. The free speech groups filed the motion in the U.S. District Court for the Eastern District of Virginia to quash the subpoena issued by the Loudoun County court.
Free Speech Rights at Stake
According to the memorandum in support of the motion to quash the subpoena, forcing AOL to reveal sanibel_us's identity under the instant circumstances would violate the poster's First Amendment right to anonymous speech.
Quoting from McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), in which the U.S. Supreme Court struck down an Ohio law requiring political literature to include information identifying its source, the memorandum states that "an author is generally free to decide whether or not to disclose his or her true identity. ... [A]n author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment."
Citing Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (2 ECLR 646, 6/27/97), the memorandum argues that such First Amendment rights "are fully applicable to communications over the Internet." The memorandum also cites several other federal cases protecting anonymous communications on the Internet. American Civil Liberties Union v. Johnson, 194 F.3d 1149 (10th Cir. 1999) (4 ECLR 1027, 11/10/99); American Civil Liberties Union v. Miller, 977 F.Supp. 1228 (N.D. Ga. 1997) (2 ECLR 660, 6/27/97); Apollo Media Corp. v. Reno, 19 F.Supp.2d 1081 (C.D.Cal. 1998) (2 ECLR 199, 2/14/97).
According to the memorandum, aside from the comment accusing Hritz of litigiousness, sanibel_us's other messages state "that Hritz's litigious and antagonistic style has hurt AK Steel by provoking hostility on the part of federal regulators and others with whom the company needs to get along, and that his presence is a detriment to the company's interests." The memorandum takes the position that "[a]lthough some of these messages mention respondent Hritz by name, and criticize him, none of them is even close to defamatory or threatening."
There is no way to enforce the subpoena as it stands without violating sanibel_us's First Amendment rights, the memorandum states. In order to impair such a fundamental interest through government action such as a subpoena, an individual's due process rights require a showing of a compelling governmental interest, Bates v. City of Little Rock, 361 U.S. 516 (1960). However, since in this case Hritz has not filed a complaint against sanibel_us and the information he has supplied to the courts in obtaining the subpoenas have not presented evidence of any harm to him, "it is impossible to determine whether Hritz could make a showing that there is a compelling interest .... Indeed, there is no assurance that, after obtaining the disclosure he seeks, Hritz will ever file a complaint. ... Thus, regardless of what test this Court may adopt to evaluate the sufficiency of Hritz' claims ..., it is clear that such claims must be filed before there can be any order compelling production."
Three-Part Test Advocated
In setting forth a test for the court to determine whether Hritz's interests should override sanibel_us's First Amendment rights, the memorandum analogizes the situation to a court's requiring a journalist to reveal the identity of a source. The memorandum takes the three-part test set forth in Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974), and other cases:
Hritz should be required to "set forth the exact statements by each anonymous poster that is alleged to have violated his rights."
The court must find whether each statement presented by Hritz is facially actionable. If there is an interpretation of a statement that gives it a non-defamatory meaning, then the innocent construction rule requires the court to treat it as non-actionable, according to the memorandum. See, e.g., Yeager v. Teamsters Local 20, 453 N.E.2d 666 (Ohio 1983). Also, statements that can be interpreted as opinions should also be treated as non-actionable. Indeed, the memorandum asserts that the court should presume that "that casual statements about a company on a Yahoo! message board express opinions, rather than facts."
Finally, if Hritz's case is weak, then discovery should not be allowed.
This standard was applied to anonymous posting online in Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D.Cal. 1999), according to the memorandum. According to the court in Columbia Insurance, "[p]eople who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identities."
Recent Decisions Cited Supporting Anonymity
In In re Subpoena Duces Tecum to America Online Inc. (Anonymous Publicly Traded Co. v. Doe), Va. Cir. Ct., Fairfax Cty., Misc. Law No. 40570, 2/7/00 (5 ECLR 321, 3/29/00), the court concluded that in order to pierce the anonymity of an AOL poster, the actual postings on which the defamation claim is based must be filed and the court must find that "the party requesting the subpoena has a legitimate, good faith basis to content that it may be the victim of conduct actionable in the jurisdiction where the suit was filed, and ...the subpoenaed identity information [must be] centrally needed to advance that claim."
The memorandum also cited to a recent Canadian decision in which a plaintiff was required to present evidence in support of a defamation claim before a subpoena to identify an anonymous defendant would be issued, Irwin Toy Ltd. v. Doe, Ontario Super. Ct. of Justice, No. 00-CV-195699 CM, 9/6/00 (5 ECLR 967, 9/27/00).
"In this case, where no complaint has been filed, no claims alleged, the allegedly tortious statements have not been provided, and no evidence is presented, there is simply no basis for allowing respondent Hritz to harness the power of the court to pierce Doe's anonymity," the memorandum concludes. "Hritz has provided only the vaguest indication of his basis for seeking to learn Doe's identity."
The full text of the complaint is available at the Electronic Frontier Foundation's Web site, eff.org. |
