Courts in the District of Columbia apply a protective test before permitting disclosure of an anonymous Internet speaker's identity. One case in state court and another in federal court, Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) and Sinclair v. TubeSockTedD, 2009 WL 320408 (D.D.C. Feb. 10, 2009), both require a substantial legal and factual showing before ordering the unmasking of an anonymous defendant.
Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009); Software & Information Industry Association v. Solers, Inc., No. 10-CV-1523 (D.C. Jan. 12, 2012)
In Solers, a software developer sued a John Doe defendant for defamation and tortious interference over an anonymous tip submitted to an industry watchdog group claiming that the software developer had engaged in software privacy. Solers subpoenaed the watchdog group, seeking information about the anonymous defendant’s identity. On appeal, the D.C. Court of Appeals adopted a protective standard for its lower courts to follow and emphasized that a plaintiff "must do more than simply plead his case" to unmask an anonymous speaker claimed to have violated the law. 977 A.2d at 958.
The D.C. Court of Appeals’ test most closely resembles those set out in Doe v. Cahill,
884 A.2d 451 (Del. 2005), and Krinsky
v. Doe 6, 159 Cal.App. 4th 1154
(Cal. Ct. App. 2008). It requires a court to follow five steps before ordering the disclosure of an anonymous or pseudonymous speaker's identity: (1) ensure that the plaintiff has adequately pleaded the elements of a defamation (or other) 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/her lawsuit. 977 A.2d at 954-56. With respect to the fifth prong, the court indicated that it would not require a showing that the plaintiff had exhausted alternative sources for the information, so long as the other elements of the test had been satisfied. The D.C. Court of Appeals remanded the case to the trial court for application of this test.
On remand, the trial court reluctantly held that the D.C. Court of Appeals' decision required enforcement of the subpoena, because the appellate court had noted that Solers had properly pleaded damages. Nevertheless, the trial court noted its disquiet with enforcing the subpoena when Solers had admitted that it could not identify lost business or customers from the alleged defamation, and so the trial court urged another appeal.
A second appeal was duly filed with the D.C. Court of Appeals under the name Software & Information Industry Association v. Solers, Inc., No. 10-CV-1523. The D.C. Court of Appeals took the opportunity to clarify the plaintiff's burden when seeking an anonymous speaker's identity, stating the plaintiff must not only plead but produce evidence of damages that resulted "as a direct consequence" of the anonymous speaker's action. Internal costs that the plaintiff incurs as a result of the anonymous speech, such as expending resources to investigate the anonymous claims, do not suffice. Moreover, the damages must be shown to exist independently of any action the plaintiff took to counteract the anonymous speech; lost profits, reluctant customers, or specific examples of impaired business reputation would help show the required damage. Because Solers failed to present such evidence, the appellate court reversed the trial court's order enforcing the subpoena.
Sinclair v. TubeSockTedD, 2009 WL 320408 (D.D.C. Feb. 10, 2009)
In Sinclair, a federal district court in the District of Columbia quashed a subpoena seeking the identities of three pseudonymous Internet users. In early 2008, plaintiff Lawrence Sinclair published a YouTube video and blog claiming that he had engaged in sexual activities and done drugs with then-presidential candidate Barack Obama. In response, “TubeSockTedD” uploaded a video to YouTube stating that Sinclair was “spreading lies about Obama.” Another Internet user, “mzmolly,” posted a comment on Democratic Underground.com stating that Sinclair was a mental patient who was institutionalized on the date in 1999 when he claimed to have encountered Obama. A third, “OWNINGLIARS,” posted a comment on Digg.com stating that Sinclair was a liar and was in a mental hospital when he claimed he met Obama. Sinclair filed a John Doe lawsuit for defamation against all three and sought identifying information from the relevant Internet service providers, and the pseudonymous posters moved to quash.
The court granted the motion to quash and dismissed the complaint in its entirety. It surveyed the case law on the First Amendment right to speak anonymously and held that, under either the Cahill or the Dendrite standard, Sinclair was not entitled to the requested discovery because his complaint was facially invalid. Specifically, the court determined that Sinclair's complaint did not plead facts necessary to establish the court's subject-matter jurisdiction over the case or personal jurisdiction over the pseudonymous defendants. In addition, the court ruled that Sinclair's defamation claims failed as a matter of law because he did not plead either actual malice or special damages, and because section 230 of the Communications Decency Act protected mzmolly and OWNINGLIARS for "simply summarizing and reporting information obtained from" a third party. In conclusion, the court stated: “Where the viability of a plaintiff’s case is so seriously deficient, there is simply no basis to overcome the considerable First Amendment interest in anonymous speech on the Internet. Sinclair has provided no ground to do so here.” 596 F. Supp. 2d at 134.
Although the court quashed the subpoena and dismissed the complaint, it refused to award mzmolly and Democratic Underground sanctions against Sinclair because of the novel areas of law involved. Id. at 134 n.4.
