District of Columbia Applies First Amendment Protections to Anonymous Internet Communications
September 10, 2009
Leo Rydzewski - Washington
Charles D. "Chuck" Tobin- Washington
In a case of first impression, the District of Columbia Court of Appeals (Washington, D.C.’s equivalent of a state supreme court), has held that a plaintiff must overcome a high threshold before obtaining the identity of an anonymous individual who sent allegedly injurious information over the Internet. With this decision, D.C. has joined a growing number of states that recognize First Amendment protections for anonymous Internet speech. The ruling is even more unique in that, while most of the other precedent arose out of chatroom environments, this matter involved a direct one-on-one communication.
The dispute began when an anonymous tipster in 2005 used an online form to submit a communication to the Software & Information Industry Association (SIIA) alleging that Solers, Inc., an Arlington, Virginia-based defense contractor, was pirating software. SIIA is 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 on behalf of its members whether to pursue an action against a company it determines to have engaged in piracy. In this instance, Solers denied the report and SIIA notified Solers that it would not pursue a claim.
Citing its long-standing policy of keeping the identity of sources anonymous, SIIA declined Solers’ pre-litigation request for the informant’s identity. Solers then filed a “John Doe” defamation claim against the informant, alleging that the report to SIIA was false and harmed Solers’ reputation and business. Solers immediately issued a subpoena to SIIA seeking documents that would reveal the informant’s name. The trial court, in 2006, quashed the subpoena, finding that Solers had not demonstrated a legal right to discover the person’s identity. The court later dismissed the complaint for failure to state a claim. Solers appealed.
Issues of First Impression
The District of Columbia Court of Appeals noted that the case “presents us with issues of first impression – whether the First Amendment protects the anonymity of someone such as Doe, and, if so, under what circumstances a plaintiff such as Solers may invoke court processes to learn Doe’s identity and have its day in court.” The court discussed the various tests that some state and federal courts have adopted for plaintiffs seeking to compel a third party to turn over the identity of an anonymous speaker. The court specifically turned aside Solers’ argument that no First Amendment protections applied to this communication, holding that all manner of anonymous speech, and specifically direct communications between people over the Internet, are protected.
Surveying the range of potential standards, the court rejected the low threshold adopted by the neighboring state of Virginia, which allows a plaintiff to obtain an anonymous speaker’s identity if it has a “good faith basis” for bringing a claim. In light of the First Amendment interests at stake, the District of Columbia Court of Appeals ruled that before trial judges order disclosure of an anonymous speaker’s identity, they must conduct a five-part analysis to:
- “ensure that the plaintiff has adequately pleaded the elements of the defamation claim”
- “require reasonable efforts to notify the anonymous defendant”
- “delay further action for a reasonable time” to allow the defendant to come forward with a motion to quash
- require the plaintiff to “proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control (emphasis is the court’s)
- “determine that the information sought is important to enable the plaintiff to proceed with his lawsuit”
The Court of Appeals therefore remanded the case to the trial court “to give Solers an opportunity to present evidence supporting its claim of defamation.” (emphasis is the court’s).
Charles D. Tobin and Leo G. Rydzewski, both in Holland & Knight’s Washington, D.C. office, represent the SIIA. Bill Stevens in the firm’s Chicago office represents SIIA in copyright enforcement issues in a number of jurisdictions.
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