The District of Columbia Court of Appeals set a precedent for balancing a speaker's right to anonymous speech with a plaintiff's right to pursue a defamation claim on January 12, when it ruled that a trade association didn’t have to disclose the name of an anonymous tipster.
Anonymous speech is important to the marketplace of ideas, said Andrew McBride, attorney for Wiley Rein who filed an amicus brief on behalf of the Business Software Alliance, in support of the Software & Information Industry Association, a software industry trade association.
The ruling "puts D.C. along with a number of jurisdictions that have given robust protection to anonymous speech,” McBride said.
Anonymous speech is important because people need to feel comfortable about coming forward and reporting misconduct without fear of retribution, said Scott Bain, chief litigation counsel for the SIIA.
“The decision is important to the rights of whistleblowers because it is an important safeguard to ensure that this kind of activity isn’t chilled,” Bain said. A whistleblower is a person who “reports instances of alleged misconduct or crime in corporations.”
The ruling in Solers, Inc. v John Doe came after the court determined that Solers, the software company that sued the anonymous tipster, did not establish a claim that would justify overruling a well-established aspect of free speech — anonymity. According to court papers, Solers claimed they suffered damages in the form of attorney fees and “employee expenses spent on performing work necessary to prepare Solers’ response” to the allegations John Doe made in a report to SIIA, in 2005, alleging that Solers was using unlicensed software. This allegation was investigated by SIIA, but they took no legal action against Solers, according to court papers.
In Solers I, the Court of Appeals adopted a five-part test in order to justify overcoming someone’s right to anonymity, Bain said. The fourth part of the test, which requires the plaintiff to prove financial or economic damage had been done by the defamatory statement, was the part that the court focused on. In the original proceedings, Solers had not met this burden, but the Court of Appeals allowed Solers to try and meet the test, since it was newly established in the jurisdiction. When it was remanded back to the district court, the court ruled in favor of Solers. However, upon appeal by SIIA, the Court of Appeals ruled they still did not meet the requirement.
According to McBride, the court ruled that filing a defamation suit is not adequate enough to overcome a person’s First Amendment right to anonymity. Instead, Solers needed to prove they had been damaged by the defamation.
According to court papers, Solers was required, but could not prove, that they suffered from damages as a “direct consequence of the alleged defamation — for example, lost profits or customers deterred from dealing with the company.”
"This is a victory for the First Amendment and it is a victory for anonymous speech on the Internet," McBride said.
Daniel Tobin, who represented Solers, could not be reached.