TechLaw

What showing must a plaintiff in an online defamation case make to unmask the identity of an anonymous poster? Two district courts have taken up that question in recent months and have adopted different standards: one applying summary judgment, the other using failure to state a claim.

Unlike plaintiffs in copyright disputes, who can rely upon the DMCA subpoena procedure, plaintiffs alleging defamation must contend with unsettled common law standards if they want to issue a subpoena to force a service provider to reveal the identity of an anonymous poster.

This past July, the U.S. District Court for the District of Arizona held that the First Amendment interests of anonymous posters require that the plaintiff present sufficient facts for its claim to be able to withstand a theoretical motion for summary judgment. Best Western Int'l Inc. v. Doe, 2006 U.S. Dist LEXIS 56014, No. 06-1537 (D. Ariz. July 25, 2006). It drew its inspiration from the Delaware Supreme Court, which elaborated that "the defamation plaintiff must introduce evidence creating a genuine issue of material fact for all elements of the claim that are within the plaintiff's control." Doe No. 1 v. Cahill, 884 A.2d 451, 465 (Del. 2005).

But more recently, the district court in Massachusetts questioned the usefulness of that approach. McMann v. Doe, No. 06-11825 (D. Mass. Oct. 31, 2006). The Cahill court's decision to not require a defamation plaintiff to show actual malice (because it involves facts not known to the plaintiff) creates a problem, the court observed:

Under this approach, a public figure could unmask anonymous critics without meeting an essential step in the prima facie case, a showing of actual malice. At the same time, requiring a preliminary showing of fault would mean no subpoenas would ever issue, and character assassins would be free to trumpet harmful lies from all corners of the internet.

Judge Joseph Tauro concluded that while there are "problems with the mechanics of a summary judgment test," it is ems.bna.comtheless "reasonable to apply some sort of a screen to the plainitff's claim before authorizing the subpoena."

The "screen" Tauro applied was the plaintiff's failure to state a claim. The alleged defamation consisted of statements that the plaintiff "turned lives upside down" and the suggestion "to be afraid, very afraid" of him. Tauro found that these statements were "bland, vague, and subjective" and amounted to nothing more than mere opinion; neither of them support a claim for defamation.

The court declined to authorize the subpoena.