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Court sets new standard for unmasking speakers

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  1. Libel and Privacy
The District of Columbia’s highest court Thursday announced a demanding new standard that plaintiffs must meet before they can obtain…

The District of Columbia’s highest court Thursday announced a demanding new standard that plaintiffs must meet before they can obtain the names of anonymous Internet commenters.

According to the decision (PDF download) in Solers, Inc. v. Doe, the case stems from a complaint submitted on the Software & Information Industry Association’s website. An anonymous tipster used the SIIA’s online form to accuse Solers of using pirated software. The SIIA investigated and cleared Solers, but it declined to disclose the identity of the tipster due to a “long standing policy of keeping the identity of [its] sources anonymous.” Solers filed claims for defamation and "tortious interference with prospective advantageous business opportunities” against the unknown tipster – named as a “John Doe” in the suit – and issued a subpoena to the SIIA demanding the name.

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.”

It noted that states vary widely in what test a defamation plaintiff must meet before it can compel a third party to turn over the identity of an anonymous speaker. Virginia, for example, “requires only that the court be convinced that the party seeking the subpoena has a legitimate, good faith basis” for its claims. But the D.C. court ruled that this lax test “may needlessly strip defendants of anonymity in situations where there is no substantial evidence of wrongdoing, effectively giving little or no First Amendment protection to that anonymity.”

Instead, the D.C. court largely sided with New Jersey and Maryland, which impose a more demanding test for unmasking anonymous speakers. The court ruled that, before the identity of an anonymous speaker be revealed, “the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.” The court remanded the case to the trial court in order to determine whether Solers could meet the new test.

Charles D. Tobin and Leo G. Rydzewski of Holland & Knight represented the Software & Information Industry Association.