D.C. Court Protects Identity of Anonymous Internet Informant
 
October 2, 2006
 
Charles D. "Chuck" Tobin- Washington

With the recent ruling of a Washington D.C. court, the nation’s capitol has joined a growing number of jurisdictions that protect the anonymity of people who send allegedly defamatory information over the Internet.

In Solers, Inc. v. John Doe, a trial judge held that a trade association may continue to shield the person who reported a company for alleged software piracy. The court agreed that the company, which filed a lawsuit against the anonymous informant, had not demonstrated a legal right to discover the person’s identity.

The dispute began last year when the informant contacted the Software & Information Industry Association (SIIA), the trade association for software and digital content businesses. Among its other services, SIIA runs an anti-piracy program that encourages people to report incidents of suspected software piracy. SIIA investigates the reports and decides whether to pursue an action against a company it determines to have engaged in piracy.

The informant reported, via SIIA’s anti-piracy Web site, allegedly unlicensed use of software by Solers, Inc., an Arlington, Virginia-based defense contractor. Solers denied the report when contacted by SIIA counsel. After further discussion, SIIA notified Solers that it would not pursue a claim.

A month later, Solers filed a Washington D.C. lawsuit against “John Doe” – the pseudonym Solers gave to SIIA’s informant – alleging defamation. Solers claimed that John Doe’s report to SIIA was false and harmed Solers’ reputation and business. Solers immediately subpoenaed SIIA, seeking all documents that would reveal the identity of the informant.

SIIA moved to quash on the ground that because the information was transmitted anonymously via the Internet, SIIA enjoyed a First Amendment privilege to withhold John Doe’s identity. Courts in a number of jurisdictions outside of the District of Columbia have faced similar issues. Typically, those cases have involved allegedly defamatory statements posted on Internet bulletin boards or chatrooms. In most of these cases, recognizing the First Amendment protections for both anonymous speech and Internet communication, the courts have held that the party seeking the source’s identity must demonstrate various combinations of factors, including an elevated need for the information, the actionability of the underlying statement, harm and the absence of any other means for identifying the source.

In Solers, SIIA argued the District of Columbia court should follow the rulings of these other cases. SIIA argued that Solers had demonstrated no harm, such as loss of business, from the allegedly defamatory statement. SIIA also argued that Solers had not demonstrated sufficient pursuit of other alternatives.

In her August 16, 2006, decision, Judge Anna Blackburne-Rigsby sided with SIIA. She adopted the test urged by SIIA, finding that Solers had shown no actionable harm.

Even if Solers only had to demonstrate harm to its reputation regardless of lost profit, it has not done so. Although there are some classes of statements which alone constitute harm, the mere allegation by Doe of copyright infringement in and of itself does not establish harm to Solers’ reputation. Additionally, even if threatened harm was sufficient for a defamation claim, Solers has not demonstrated any risk of harm … . There is no indication that any entity other than [SIIA] had knowledge of Doe’s alleged defamatory statements.

In granting SIIA’s motion to quash the subpoena, the judge also agreed that Solers had a duty to exhaust alternative sources, and that it failed to do so.

This case – involving a point-to-point communication over the Internet – is somewhat different than the usual context for this type of motion to quash, which typically involves a public posting. Nonetheless, the court’s recognition of both a privilege protecting the recipient and a First Amendment protection for the anonymous communication should help in other permutations of subpoenas for Internet communications. Holland & Knight represented the Software & Information Industry Association in this matter.

For more information, e-mail Charles D. Tobin at charles.tobin@hklaw.com or call toll free, 1-888-688-8500.