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How to Unmask an Anonymous Blogger
The company's right to know vs. the anonymous blogger's right to remain unknown

By: Kevin F. Berry
The Corporate Counselor
April 4, 2006

When does it make sense to spend the time and expense necessary to determine the identity of an anonymous blogger who is damaging the company?

This question is becoming increasingly important with the proliferation of blogs and Web postings for corporate criticism -- from wakeupwalmart.com to www.googlereallysucks.blogspot.com. And whether companies and their in-house counsel pursue actions against bloggers in these cases involves more than the usual assessment of opportunity costs and the pure business interests of the company. There are limits to the rights of companies to compel an Internet Service Provider (ISP) to reveal the name of its customer, particularly when the ISP customer wishes to remain anonymous. This article explores what the courts are requiring companies to show before they will call for an ISP to divulge a blogger's identity and provides some guidelines in evaluating whether to pursue such a strategy.

TYPICAL FACT PATTERN

Usually, these disputes arise from an anonymous Web posting or Web log (blog) including damaging comments about a company. The company, in an effort to stem the ill effects of the comments, particularly if they are false, sues the ISP to determine the blogger's identity. The ISP declines to identify the blogger either because of an internal policy or a demand or expectation of privacy by the blogger.

Indeed, contracts between ISP and bloggers typically include language obligating the ISP to make certain efforts to maintain the confidentiality of the blogger's identity. Under federal law, an ISP is required to notify a blogger if there has been a request for his identity. A court is then asked to consider compelling the ISP to unmask the blogger, either because an ISP files suit asking for such relief or a blogger files a John Doe suit to maintain his anonyminity.

Besides a desire to silence the company critic, other circumstances can instigate this kind of dispute. There have been reported decisions involving disgruntled or former employees seeking retribution, who spread rumors about a company on the Internet to induce a rise or fall in the stock price and then take advantage of the trading activity. Bloggers have also used anonymous postings to infringe on companies' intellectual property. What is a company to do?

LEGAL ISSUE JOINED

In attempting to maintain their anonymity, bloggers have claimed protection under the First Amendment. There is a rich history in the United States of protecting anonymous free speech. Long before the days of the Web and blogging, Alexander Hamilton and Thomas Jefferson, among many others, frequently used pseudonyms in authoring various papers assailing their political opponents. More recently, the Supreme Court of the United States in Talley v. California, 362 U.S. 60 (1960) struck down a local ordinance that required the distributor of handbills to disclose the author's identity.

Of course, certain speech, like libel and defamation, is not protected. Moreover, an employer has some interest in protecting against the dissemination of certain other forms of speech, for example trade secrets and confidential proprietary information.

In addressing this delicate balance between protected and unprotected speech, the Supreme Court has expressed a concern for strike suits by monied parties seeking to quell criticism. See, e.g., Bradley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). Furthermore. the monied parties are usually engaged in some expedited proceeding where one party is seeking some form of equitable relief. Here, the appellate courts are forced to review a limited record, not one where the parties have had a chance to explore all relevant evidence that supports their respective positions.

A number of courts have rushed to articulate a new set of standards to delineate the scope of discovery to determine the identity of anonymous bloggers. At times, the courts rulings have been described as "outcome determinative" -- when a court comes to decision as to the case's outcome and backs into its rationale for the result. Moreover, the results have not been consistent -- leaving in-house counsel to navigate among jurisdictions and determine which one is the friendliest in granting the relief they seek.

QUESTION PRESENTED AND CASE LAW

Under what circumstances can a company learn the identity of an anonymous blogger who disparages the company or its products or services, recognizing there is a First Amendment right to anonymous free speech? The rulings are conflicting.

Two decisions in 1999 and 2001 were the first to enunciate standards for the trial court's analysis in this arena. In Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), the United States District Court for the Northern District of California, in a trademark infringement action, set forth safeguards that a plaintiff (company) must meet prior to granting discovery of the blogger's identity. The plaintiff must: 1) identify the target with sufficient specificity to establish the court's jurisdiction; 2) demonstrate prior efforts to locate the target; 3) demonstrate that it can withstand a motion to dismiss; and 4) explain what specific discovery it wants and why it will identify the target. The "Motion to Dismiss" standard is a fairly low benchmark, requiring the company seeking disclosure merely to plead facts necessary to succeed in its claim.

Two years later, in Dendrite Int'l, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct., App. Div. 2001) a case involving two former employees who published critical comments concerning certain business practices of the company, the New Jersey Superior Court required: 1) notice to the target and an opportunity for the target to be heard; 2) fact specific pleadings; 3) a hearing to determine whether the plaintiff could survive a motion to dismiss and could set forth a prima facie claim with supporting evidence; and 4) assuming plaintiff survives the third hurdle, balancing the defendant's First Amendment rights against the strength of plaintiff's prima facie claim.

These two standards, i.e., "motion to dismiss" and "summary judgment," seem to have set forth the parameters of the debate. Other courts have since worked to elaborate or refine these standards.

In Doe v. Cahill, 884 A.2d 451 (Del. 2005), for example, the Delaware Supreme Court considered what a plaintiff must show in order to obtain a subpoena requiring an Internet service provider to disclose who posted anonymous comments about a politician on the Internet. After considering the First Amendment implications of various standards articulated by other courts, the Delaware Supreme Court, like the New Jersey Superior Court, held that a plaintiff must make a prima facie showing, sufficient to withstand a motion for summary judgment. After noting the long history of First Amendment protection for anonymous speech, the Delaware Supreme Court observed that the First Amendment did not protect defamatory or libelous speech. While it found that it had to construct a test that would protect the right to anonymous speech, the court would not extend First Amendment protection into new areas.

Indicating that many "silly" libel cases can survive a motion to dismiss, the court decided that disclosing an anonymous Internet poster's identity -- any time a plaintiff could state a claim under Delaware's notice pleading rules -- would unduly burden the right to speak anonymously.

In Apple Computer, Inc. v. Doe 1, No. 1-04-CV-032178, 2005 WL 578641 (Cal. Super. Ct. March 11, 2005), the Superior Court of California ordered an ISP to identify people accused of misappropriating Apple Computer's trade secrets by leaking confidential information about Apple products to or through Web sites. Apple filed a complaint against a group of unnamed individuals and entities that allegedly leaked trade secrets about new Apple products to several online Web sites, including AppleInsider and PowerPage. According to Apple, the information could have only been obtained from Apple employees who breached company confidentiality agreements.


Apple sought the identities of the source(s) for this information, and subpoenaed Nfox, PowerPage's e-mail service provider, for e-mail messages believed to identify names. Claiming that they were "journalists," and that the First Amendment and the California reporter's shield law allowed them to protect the confidentiality of their sources, three individuals moved for a protective order to block Apple's subpoena. Noting that the California legislature had not carved out any exception to these statutes for journalists, Web bloggers or anyone else, the court agreed with Apple, and denied the motion for a protective order. In deciding to enforce Apple's subpoena, the court reasoned that California's civil and criminal statutes prohibiting the misappropriation of trade secrets reflect the state's commitment to the protection of proprietary business information. Keeping this information secret is essential to the future of technology and innovation, and preserving this right outweighs any journalistic privilege.

The Pennsylvania Supreme Court has indicated that it might consider a balancing test in Melvin v. Doe, 836 A.2d 42 (Pa. 2003). In Melvin, a former state judge sought the identity of an Internet blogger who accused her of illegal lobbying. The case was decided on procedural grounds but a concurring opinion suggested that a test balancing the First Amendment right to anonymous speech with the right to address unprotected speech should be developed.

In Klehr Harrison Harvey y Branzberg & Ellers v. JPA Development, Inc., (Philadelphia Court of Common Pleas 2006) (Judge Sheppard), the court considered whether a Web site operator was required to turn over the names of anonymous authors of comments that allegedly defamed a Philadelphia law firm engaged in a contentious lawsuit. After reviewing the Dendrite and Doe v. Cahill decisions, the court found that a new set of rules or guidelines woulddo more harm than good. It observed that Rule 4011 of the Pennsylvania Rules of Civil Procedure already provided a mechanism to resolve the dispute. Under that rule, a defendant could seek a protective order for discovery sought in "bad faith" or which would cause "unreasonable annoyance, embarrassment, oppression, burden or expense." The court, however, concluded that the speech involved was defamation per se and from that found the Internet posting was not protected speech -- making his opinion, in some sense, outcome determinative. The court did, however, review current commentary on the issue and suggested that the balancing of interests utilized by other courts -- and recommended by the Melvin court -- would emerge as controlling precedent.

WHAT TO CONSIDER BEFORE FILING SUIT

If identifying an anonymous blogger becomes necessary, investigation is a required prerequisite to determine the nature of the postings, and to place them in context of your business. For example, consider the following:

Who would have access to the information posted?
When would the information have been available to the blogger?
Can the company pinpoint potential targets because of the nature, content and accuracy/noticeable inaccuracies of the information disclosed, use of time sensitive information, or other specifically unique aspects that would "fingerprint" the information and allow the company to narrow the focus of its search for the author?
Preparation is also key. Before preparing pleadings to file in court, a company should draft affidavits with accompanying documents to describe the nature of the postings and why the postings do not deserve First Amendment protection, be it related to arguments of fraud, anti-competitive conduct, trade secrecy, violation of confidentiality agreements or other hallmarks of unprotected speech. Any pleading itself should conform to Federal Rule of Civil Procedure 9(b)'s requirements of specificity -- the who, what, when, where and why -- which provide sufficient detail to the court to tip the balancing in your favor.

Any decision to commence litigation to unmask a blogger who disparages the company on the Internet requires an informed judgment. If the goal is to intimidate authors of critical comments alone, it is likely any effort will be both expensive and ineffective. If, however, the company can frame the argument that attacks the speech as unprotected, and supports that argument with tangible evidence, it stands a much greater chance of silencing its critics.

Kevin F. Berry, chair of the commercial litigation practice group at Cozen O'Connor, has more than 25 years experience in handling commercial and business litigation matters and has represented businesses in actions against anonymous bloggers. Contact Berry at kberry@cozen.com or (215) 665-4611.

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