In most cases involving anonymous online libel, courts have dismissed the lawsuits and/or have refused to have the identity of the anonymous critic revealed.
The seminal (and only federal) case on this issue is Doe v. 2TheMart.com, Inc. In this 2001 case, shareholders of 2TheMart.com filed suit against the company amid allegations of fraud. Some of the disgruntled shareholders made their discontent known by posting messages critical of 2TheMart.com on Internet bulletin boards. The bulletin boards were created and maintained by InfoSpace, an ISP to which these shareholders subscribed. The messages, one of which referred to officials of 2TheMart.com as “lying, cheating, thieving, stealing lowlife criminals,” were posted anonymously or by people using such pseudonyms as “Truthseeker,” “Cuemaster” and “NoGuano.” 2TheMart.com responded by presenting a subpoena to InfoSpace in an attempt to obtain the identities of these people.
A U.S. District Court in Washington state allowed NoGuano to object to the subpoena (as “John Doe”) and the court sustained the objection. The First Amendment, said the court, protects the anonymity of Internet speech. It called anonymous speech a “great tradition that is woven into the fabric of this nation’s history,” and added that “the ability to speak one’s mind on the Internet without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate."
“People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court,” the district court said.
2TheMart.com argued that the right to speak anonymously did not create any corresponding right to remain anonymous after speech. Once Truthseeker and his cohorts made public accusations, the company said, they had to own up to them, their identity became fair game, and the company had the right to know who its accusers were.
But the court disagreed, warning that “if Internet users could be stripped of [their] anonymity by a civil subpoena ... this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights . ... Unmeritorious attempts to unmask the identities of online speakers have a chilling effect on Internet speech.”
The court devised a strategy to balance the interests in protecting a party’s online anonymity with preserving an opposing party’s right to sue for libel if warranted. The ruling announced a four-part test, such that the identity of an anonymous Internet user could be disclosed if: “(1) the subpoena seeking the information was issued in good faith and not for any improper purpose; (2) the information sought relates to a core claim or defense; (3) the identifying information that is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.”
Applying this test to the facts before it, the district court denied the issuance of the subpoena, concluding that 2TheMart.com’s real purpose in seeking it was to intimidate its critics into silence.
AI
