Court offers guidelines on when to unmask anonymous posters

8-20-2009 National:

A company that was accused of software piracy has turned around and sued the anonymous tipster that first leveled the accusation, accusing the John Doe of defamation. An appeals court has ruled the case may go forward, with firm guidelines on determining whether or not to unmask the tipster.

In the US, the right to free speech is construed as also protecting the anonymity of the person doing the speaking. Provided that the content, be it spoken or written, violates no laws, citizens have the right to fulminate in public fora without said public being aware of their identity. Courts have also extended this protection to anonymous Internet communications, and are now being asked to weigh in on a related issue: when do accusations of wrongdoing justify the removal of anonymity from the sources of anonymous statements made via the Internet.

The precedents that have been set so far have been a bit mixed. In cases involving defamation, a Virginia court has determined that plaintiffs need only to show that they have a "good faith basis" for their accusations in order to have an otherwise anonymous defendant named. In contrast, New Jersey courts have decided that each claim against a defendant has to be supported by evidence. The latest to weigh in is the District of Columbia's Court of Appeals, which is tackling a case in which a John Doe defendant lodged anonymous accusations of software piracy against a company, which has sued him for defamation. The DC court ruled that the case may proceed, and provided guidelines that the trial judge should use in order to determine whether the defendant should be unmasked.

The case started with an anonymous complaint submitted to the Software & Information Industry Association, which (much like the Business Software Alliance), allows anyone to finger institutions for using pirated software. In this case, the person who submitted the complaint suggested that a company that makes software for the Defense Department, Solers, Inc., was engaged in piracy. The SIIA sent Solers a threatening letter, suggesting it undertake an audit of its compliance and return the results.

Solers argued that it was in compliance, and requested the identity of the John Doe who had turned it in. When the SIIA declined to identify him, the company filed a complaint, alleging that the anonymous tip amounted to defamation, and that it interfered with the company's ability to do business. As part of the suit, Solers subpoenaed the SIIA, demanding it turn over all the information it had on John Doe. The SIIA went to court in an attempt to quash the subpoena. The presiding judge agreed, but Solers appealed, leading to the current decision.

The appeals court, noting that DC courts had no precedent for this situation, examined the varied decisions handed down in other areas. It found the Virginia standard—a "good faith basis" for the accusations—far too lax, given the importance that anonymity has been granted in the US. Instead, the court laid out guidelines that are far closer to the New Jersey standard:

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.

In short, the plaintiff has to provide evidence that its claims are reasonable and the identity of the defendant is needed before the suit could continue. The defendant should also be given the opportunity to attempt to block his or her unmasking in court.

As for the case itself, the decision to throw out the initial subpoena was made in part because Solers hadn't bothered to provide evidential support for its charges; given that there was no precedent to suggest it needed to do so, the Appeals Court ruled that it could go back and try to demonstrate its need to have the subpoena executed to the trial court.

The Appeals Court, however, recognized that the mechanism for submitting an anonymous tip was substantially different from that involved in most other precedents, which involved publicly accessible blog and forum posts. "For all that we know at this point," the Court wrote, "the transmission of his accusations was not substantively different from dropping a letter into the mail, making a phone call, or slipping a note under the door." The implication clearly being that an equivalent action would not justify having the subpoena executed. ..Source.. by John Timmer, ars Technica