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Trade group's anonymous source need not be disclosed

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  1. Protecting Sources and Materials
NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Confidentiality/Privilege   ·   Aug. 25, 2006

NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Confidentiality/Privilege   ·   Aug. 25, 2006

Trade group’s anonymous source need not be disclosed

  • A subpoena seeking the identity of a source who alleged that a company was using unlicensed software was quashed by a District of Columbia Superior Court judge.

Aug. 25, 2006  ·   A Superior Court for the District of Columbia refused to order a private organization to turn over the identity of a source who accused the party seeking disclosure of using pirated software.

The August 16 decision by Judge Anna Blackburne-Rigsby found that the Software & Information Industry Association (“SIIA”) — a trade organization for the software and digital content industry — did not need to turn over the identity of one of its sources. SIIA encourages employees to anonymously report companies which use unlicensed software or engage in software piracy.

An anonymous source reported to SIIA that Solers, Inc., an information management and project development company based in Arlington, Va., was using unlicensed software. After an investigation, no piracy was found and, on May 18, 2005, Solers filed a defamation suit against the source and subpoenaed SIIA to give up the source’s identity.

SIIA filed a motion to quash the subpoena and the court found that the First Amendment and D.C. law protected SIIA from identifying its source.

“Under any of the tests articulated, a motion to dismiss or any heightened motion to dismiss standard, Solers has not made a claim for relief for its defamation allegation,” Blackburne-Rigsby wrote.

“It’s the first time that we’re aware that a court in the District of Columbia has upheld the right of sources of information over the Internet to keep their identity shielded,” said Charles Tobin, who represented SIIA. “First, it’s an unusual context, it’s not a chat room, it’s not an ISP, and it’s different from the AOL-type cases where a bulletin board host is protected from having to reveal a source’s identity. This is a communication directly with the software association via the Internet on an anonymous basis. It’s an atypical situation, but the court recognized that even there, given the protections for anonymous speech, particularly over the Internet, that the same First Amendment privilege applies as it would to journalists.”

The court’s decision will also help newspapers, internet service providers, and others to protect any anonymous sources, according to Tobin.

“There’s a growing body of jurisdictions that are adopting these types of protections because the courts are agreeing that it’s just too easy for people to file defamation lawsuits against John and Jane Does and then subpoena the person who received the content,” Tobin said. “We’re pleased that the D.C. court recognized that the standard needs to be higher than simply paying a filing fee and opening up a case file.”

(Solers, Inc. v. Doe, Charles Tobin, Holland & Knight, Washington, D.C.)CM

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