Professor Wendy Seltzer, email wendy.seltzer@brooklaw.edu
September 14, 2006Required:
For further reading (optional):
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Offline or on, defamation is a complicated subject. Its elements, as described by
the Restatement (Second) of Torts § 558, are "(a) a false and defamatory statement
concerning another; (b) an unprivileged publication to a third party; (c) fault amounting
at least to negligence on the part of the publisher; and (d) either
actionability of the statement irrespective of special harm or the existence of special
harm caused by the publication." There are numerous exceptions and defenses that may
depend on the nature and subject of the communication and of the parties.
Apart from the original speaker, those who repeat defamatory statements may also face
liability. Courts have traditionally distinguished between "publishers" and "distributors," holding the publisher of
a defamatory statement (the editor of a magazine or radio broadcaster) liable, but
not the unknowing distributor (the bookstore or newspaper vendor).
In the early cases, Cubby v. Compuserve and Stratton Oakmont v. Prodigy, courts
struggled with the proper analogy: Is an online bulletin board service a library
or a newspaper? Why do the two courts reach different conclusions? Do you
see significant differences between CompuServe's Rumorville and Prodigy's "Money Talk"?
What kind of incentives does the two courts' reasoning create for companies operating
online services?
Congress addressed some of the uncertainty in 1996, when it enacted Section 230
of the Communications Decency Act, 47 U.S.C. § 230. Look at the motivations in
the legislative findings, as well as the core protections in § 230(c). (Note that
§ 230 was not struck down when the "harmful to minors" provisions were declared
unconstitutional in Reno v. ACLU). How would Cubby and Stratton Oakmont have been
resolved if they had been litigated post-CDA? What kind of incentives does this
law create for Internet service providers?
Zeran v. America Online and Blumenthal v. Drudge show how § 230 has played
out. Not how much harder the statute made it to pursue intermediaries. Why
do both Zeran and Blumenthal sue ISPs? What were their alternatives? Are the
courts comfortable with the results they reach? Since Zeran, courts have almost universally
followed its reading of § 230.
Not only does the Internet make it easy for speakers to reach nationwide
audiences, it lets them do so anonymously or using pseudonyms – if they are
careful. Many Internet users who think that they are speaking anonymously don’t realize
that ISPs have enough information to connect their postings to an offline identity,
perhaps because they gave real information when they signed up for accounts, or
perhaps because they posted from computers on dial-up or broadband connections registered in
their names. Doe v. 2TheMart shows a court responding to a third-party discovery
subpoena to an ISP asking for users’ identifying information, where the user asserts
rights to anonymity. Compare Columbia Insurance Co. v. Seescandy.com, where the plaintiff seeks the identity of a party to the suit. Do the standards for discovery of the identity differ? Should they?
As you see in 2TheMart, the right to speak anonymously has been recognized
as part of the First Amendment’s guarantee of free speech. Users who want
to assure that their postings are not traced back to offline identities can
use a variety of anonymizing technologies: paying cash at an Internet café; going
through a proxy such as anonymizer.com; or “onion routing” their traffic through a
series of proxies, such as Tor (see <http://tor.eff.org/> ). Political bloggers on the
right and left have used long-term pseudonyms when posting their commentaries. For more
on anonymizing technologies, see EFF’s Blogging Anonymously, <http://www.eff.org/Privacy/Anonymity/blog-anonymously.php>.
How should we treat anonymity in the Internet age, as compared to the posting of anonymous handbills in the town square? Can accountability and trust be created without reference to offline identity? Is technology or law winning the arms race?
CompuServe develops and provides computer-related products and services, including CompuServe Information Service ("CIS"),
an on-line general information service or "electronic library" that subscribers may access from
a personal computer or terminal. Subscribers to CIS pay a membership fee and
online time usage fees, in return for which they have access to the
thousands of information sources available on CIS. Subscribers may also obtain access to
over 150 special interest "forums," which are comprised of electronic bulletin boards, interactive
online conferences, and topical databases.
One forum available is the Journalism Forum, which focuses
on the journalism industry. Cameron Communications, Inc. ("CCI"), which is independent of CompuServe,
has contracted to "manage, review, create, delete, edit and otherwise control the contents"
of the Journalism Forum "in accordance with editorial and technical standards and conventions
of style as established by CompuServe."
One publication available as part of the
Journalism Forum is Rumorville USA ("Rumorville"), a daily newsletter that provides reports about
broadcast journalism and journalists. Rumorville is published by Don Fitzpatrick Associates of San
Francisco ("DFA"), which is headed by defendant Don Fitzpatrick. CompuServe has no employment,
contractual, or other direct relationship with either DFA or Fitzpatrick; DFA provides Rumorville
to the Journalism Forum under a contract with CCI. The contract between CCI
and DFA provides that DFA "accepts total responsibility for the contents" of Rumorville.
Cameron Aff., Exhibit B. The contract also requires CCI to limit access to
Rumorville to those CIS subscribers who have previously made membership arrangements directly with
DFA.
CompuServe has no opportunity to review Rumorville's contents before DFA uploads it into
CompuServe's computer banks, from which it is immediately available to approved CIS subscribers.
CompuServe receives no part of any fees that DFA charges for access to
Rumorville, nor does CompuServe compensate DFA for providing Rumorville to the Journalism Forum;
the compensation CompuServe receives for making Rumorville available to its subscribers is the
standard online time usage and membership fees charged to all CIS subscribers, regardless
of the information services they use. CompuServe maintains that, before this action was
filed, it had no notice of any complaints about the contents of the
Rumorville publication or about DFA.
In 1990, plaintiffs Cubby, Inc. ("Cubby") and Robert Blanchard
("Blanchard") (collectively, "plaintiffs") developed Skuttlebut, a computer database designed to publish and distribute
electronically news and gossip in the television news and radio industries. Plaintiffs intended
to compete with Rumorville; subscribers gained access to Skuttlebut through their personal computers
after completing subscription agreements with plaintiffs.
Plaintiffs claim that, on separate occasions in April
1990, Rumorville published false and defamatory statements relating to Skuttlebut and Blanchard, and
that CompuServe carried these statements as part of the Journalism Forum. The allegedly
defamatory remarks included a suggestion that individuals at Skuttlebut gained access to information
first published by Rumorville "through some back door"; a statement that Blanchard was
"bounced" from his previous employer, WABC; and a description of Skuttlebut as a
"new start-up scam."
…
Discussion
A. The Applicable Standard of Liability
Plaintiffs base their libel claim on the allegedly
defamatory statements contained in the Rumorville publication that CompuServe carried as part of
the Journalism Forum. CompuServe argues that, based on the undisputed facts, it was
a distributor of Rumorville, as opposed to a publisher of the Rumorville statements.
CompuServe further contends that, as a distributor of Rumorville, it cannot be held
liable on the libel claim because it neither knew nor had reason to
know of the allegedly defamatory [**9] statements. Plaintiffs, on the other hand, argue that
the Court should conclude that CompuServe is a publisher of the statements and
hold it to a higher standard of liability.
Ordinarily, "'one who repeats or otherwise
republishes defamatory matter is subject to liability as if he had originally published
it.'" Cianci v. New Times Publishing Co., 639 F.2d 54, 61 (2d Cir. 1980) (Friendly, J.) With respect to entities such as news vendors, book stores,
and libraries, however, "New York courts have long held that vendors and distributors
of defamatory publications are not liable if they neither know nor have reason
to know of the defamation." Lerman v. Chuckleberry Publishing, Inc., 521 F. Supp. 228, 235 (S.D.N.Y. 1981).
The requirement that a distributor must have knowledge
of the contents of a publication before liability can be imposed for distributing
that publication is deeply rooted in the First Amendment, made applicable to the
states through the Fourteenth Amendment. "The constitutional guarantees of the freedom of speech
and of the press stand in the way of imposing" strict liability on
distributors for the contents of the reading materials they carry. Smith v. California, 361 U.S. 147, 152-53, 4 L. Ed. 2d 205, 80 S. Ct. 215 (1959). In Smith, the
Court struck down an ordinance that imposed liability on a bookseller for possession
of an obscene book, regardless of whether the bookseller had knowledge of the
book's contents. The Court reasoned that
"Every bookseller would be placed under an obligation to make himself aware of
the contents of every book in his shop. It would be altogether unreasonable
to demand so near an approach to omniscience." And the bookseller's burden would
become the public's burden, for by restricting him the public's access to reading
matter would be restricted. If the contents of bookshops and periodical stands were
restricted to material of which their proprietors had made an inspection, they might
be depleted indeed.
Id. at 153. Although Smith involved criminal liability, the First Amendment's guarantees are no less
relevant to the instant action: "What a State may not constitutionally bring about
by means of a criminal statute is likewise beyond the reach of its
civil law of libel. The fear of damage awards . . . may
be markedly more inhibiting than the fear of prosecution under a criminal statute."
New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964)
CompuServe's CIS product is in essence an electronic, for-profit library that carries a
vast number of publications and collects usage and membership fees from its subscribers
in return for access to the publications. CompuServe and companies like it are
at the forefront of the information industry revolution. High technology has markedly increased
the speed with which information is gathered and processed; it is now possible
for an individual with a personal computer, modem, and telephone line to have
instantaneous access to thousands of news publications from across the United States and
around the world. While CompuServe may decline to carry a given publication altogether,
in reality, once it does decide to carry a publication, it will have
little or no editorial control over that publication's contents. This is especially so
when CompuServe carries the publication as part of a forum that is managed
by a company unrelated to CompuServe.
With respect to the Rumorville publication, the undisputed
facts are that DFA uploads the text of Rumorville into CompuServe's data banks
and makes it available to approved CIS subscribers instantaneously. CompuServe has no more
editorial control over such a publication than does a public library, book store,
or newsstand, and it would be no more feasible for CompuServe to examine
every publication it carries for potentially defamatory statements than it would be for
any other distributor to do so. "First Amendment guarantees have long been recognized
as protecting distributors of publications . . . . Obviously, the national distributor
of hundreds of periodicals has no duty to monitor each issue of every
periodical it distributes. Such a rule would be an impermissible burden on the
First Amendment." Lerman v. Flynt Distributing Co., 745 F.2d 123, 139 (2d Cir. 1984),.
Technology is rapidly transforming the information industry. A computerized database is
the functional equivalent of a more traditional news vendor, and the inconsistent application
of a lower standard of liability to an electronic news distributor such as
CompuServe than that which is applied to a public library, book store, or
newsstand would impose an undue burden on the free flow of information. Given
the relevant First Amendment considerations, the appropriate standard of liability to be applied
to CompuServe is whether it knew or had reason to know of the
allegedly defamatory Rumorville statements.
B. CompuServe's Liability as a Distributor
CompuServe contends that it is
undisputed that it had neither knowledge nor reason to know of the allegedly
defamatory Rumorville statements, especially given the large number of publications it carries and
the speed with which DFA uploads Rumorville into its computer banks and makes
the publication available to CIS subscribers. The burden is thus shifted to plaintiffs,
who "'must set forth specific facts showing that there is a genuine issue
for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Plaintiffs have not set forth anything other than conclusory allegations
as to whether CompuServe knew or had reason to know of the Rumorville
statements, and have failed to meet their burden on this issue. Plaintiffs do
contend that CompuServe was informed that persons affiliated with Skuttlebut might be "hacking"
in order to obtain unauthorized access to Rumorville, but that claim is wholly
irrelevant to the issue of whether CompuServe was put on notice that the
Rumorville publication contained statements accusing the Skuttlebut principals of engaging in "hacking."
Plaintiffs have
not set forth any specific facts showing that there is a genuine issue
as to whether CompuServe knew or had reason to know of Rumorville's contents.
Because CompuServe, as a news distributor, may not be held liable if it
neither knew nor had reason to know of the allegedly defamatory Rumorville statements,
summary judgment in favor of CompuServe on the libel claim is granted.
…
Conclusion
For the reasons stated above, CompuServe's motion for summary judgment pursuant to Fed. R. Civ. P. 56 is
granted on all claims asserted against it.
At issue
in this case are statements about Plaintiffs made by an unidentified bulletin board
user or "poster" on PRODIGY's "Money Talk" computer bulletin board on October 23rd
and 25th of 1994. These statements included [claims that plaintiff had engaged in
criminal and fraudulent acts in connection with stock offerings]. Plaintiffs commenced this action
against PRODIGY, the owner and operator of the computer network on which the
statements appeared, and the unidentified party who posted the [allegedly defamatory] statements. The
second amended complaint alleges ten (10) causes of action, including claims for per
se libel.
…
Plaintiffs base their claim that PRODIGY is a publisher in large measure on
PRODIGY's stated policy, starting in 1990, that it was a family oriented computer
network. In various national newspaper articles written by Geoffrey Moore, PRODIGY's Director of
Market Programs and Communications, PRODIGY held itself out as an online service that
exercised editorial control over the content of messages posted on its computer bulletin
boards, thereby expressly differentiating itself from its competition and expressly likening itself to a
newspaper. In one article PRODIGY stated:
"We make no apology for pursuing a value system that reflects the culture
of the millions of American families we aspire to serve. Certainly no responsible
newspaper does less when it chooses the type of advertising it publishes, the
letters it prints, the degree of nudity and unsupported gossip its editors tolerate."
Plaintiffs characterize the aforementioned articles by PRODIGY as admissions and argue that, together
with certain documentation and deposition testimony, these articles establish Plaintiffs' prima facie case.
In opposition, PRODIGY insists that its policies have changed and evolved since 1990
and that the latest article on the subject, dated February, 1993, did not
reflect PRODIGY's policies in October, 1994, when the allegedly libelous statements were posted.
Although the eighteen month lapse of time between the last article and the
aforementioned statements is not insignificant, and the Court is wary of interpreting statements and
admissions out of context, these considerations go solely to the weight of this
evidence.
…
A finding that PRODIGY is a publisher is the first hurdle for Plaintiffs
to overcome in pursuit of their defamation claims, because one who repeats or
otherwise republishes a libel is subject to liability as if he had originally
published it. In contrast, distributors such as book stores and libraries may be
liable for defamatory statements of others only if they knew or had reason
to know of the defamatory statement at issue. A distributor, or deliverer of
defamatory material is considered a passive conduit and will not be found liable
in the absence of fault. However, a newspaper, for example, is more than
a passive receptacle or conduit for news, comment and advertising. The choice of
material to go into a newspaper and the decisions made as to the
content of the paper constitute the exercise of editorial control and judgment, and
with this editorial control comes increased liability. In short, the critical issue to
be determined by this Court is whether the foregoing evidence establishes a prima
facie case that PRODIGY exercised sufficient editorial control over its computer bulletin boards
to render it a publisher with the same responsibilities as a newspaper.
…PRODIGY argues
that in terms of sheer volume -- currently 60,000 messages a day are
posted on PRODIGY bulletin boards -- manual review of messages is not feasible.
While PRODIGY admits that Board Leaders may remove messages that violate its Guidelines,
it claims in conclusory manner that Board Leaders do not function as "editors".
Furthermore, PRODIGY argues generally that this Court should not decide issues that can
directly impact this developing communications medium without the benefit of a full record,
although it fails to describe what further facts remain to be developed on
this issue of whether it is a publisher.
As for legal authority, PRODIGY relies
on the Cubby case, supra. There the defendant CompuServe was a computer network
providing subscribers with computer related services or forums including an online general information
service or "electronic library". One of the publications available on the Journalism Forum
carried defamatory statements about the Plaintiff, an electronic newsletter. Interestingly, an independent entity
named Cameron Communications, Inc. ("CCI") had "contracted to manage, review, create, delete, edit
and otherwise control the contents of the Journalism Forum in accordance with editorial
and technical standards and conventions of style as established by CompuServe". The Court
noted that CompuServe had no opportunity to review the contents of the publication
at issue before it was uploaded into CompuServe's computer banks. Consequently, the Court
found that CompuServe's product was, "in essence, an electronic for-profit library" that carried
a vast number of publications, and that CompuServe had "little or no editorial
control" over the contents of those publications. In granting CompuServe's motion for summary
judgment, the Cubby court held:
A computerized database is the functional equivalent of a more traditional news vendor,
and the inconsistent application of a lower standard of liability to an electronic
news distributor such as CompuServe than that which is applied to a public
library, book store, or newsstand would impose an undue burden on the free flow
of information.
The key distinction between CompuServe and PRODIGY is two fold. First, PRODIGY held
itself out to the public and its members as controlling the content of
its computer bulletin boards. Second, PRODIGY implemented this control through its automatic software
screening program, and the Guidelines which Board Leaders are required to enforce. By
actively utilizing technology and manpower to delete notes from its computer bulletin boards
on the basis of offensiveness and "bad taste", for example, PRODIGY is clearly
making decisions as to content and such decisions constitute editorial control. That such
control is not complete and is enforced both as early as the notes
arrive and as late as a complaint is made, does not minimize or
eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role
of determining what is proper for its members to post and read on
its bulletin boards. Based on the foregoing, this Court is compelled to conclude
that for the purposes of plaintiffs' claims in this action, PRODIGY is a
publisher rather than a distributor.
…PRODIGY's conscious choice, to gain the benefits of editorial control,
has opened it up to a greater liability than CompuServe and other computer
networks that make no such choice. For the record, the fear that this
Court's finding of publisher status for PRODIGY will compel all computer networks to
abdicate control of their bulletin boards, incorrectly presumes that the market will refuse
to compensate network for its increased control and the resulting increased exposure. See,
Eric Schlachter, Cyberspace, The Free Market and The Free Marketplace of Ideas: Recognizing
Legal Differences in Computer Bullet: Board Functions , 16 Hastings Communication and Entertainment L.
J., 87 138-139. Presumably PRODIGY's decision to regulate the content of its bulletin
boards was in part influenced by its desire to attract a mark it
perceived to exist consisting of users seeking a "family-oriented" computer service. This decision
simply required that to the extent computer networks provide such services, they must
also accept the concomitant legal consequences. In addition, the Court also notes that
the issues addressed herein may ultimately be preempted by federal law if the
Communications Decency Act of 1995, several versions of which a pending in Congress,
is enacted.
(a) Findings.
The Congress finds the following:
(1) The rapidly developing array of Internet and other
interactive computer services available to individual Americans represent an extraordinary advance in the
availability of educational and informational resources to our citizens.
(2) These services offer users
a great degree of control over the information that they receive, as well
as the potential for even greater control in the future as technology develops.
(3)
The Internet and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for cultural development, and myriad avenues for
intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the
benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are
relying on interactive media for a variety of political, educational, cultural, and entertainment
services.
(b) Policy. It is the policy of the United States--
(1) to promote the
continued development of the Internet and other interactive computer services and other interactive
media;
(2) to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3)
to encourage the development of technologies which maximize user control over what information
is received by individuals, families, and schools who use the Internet and other
interactive computer services;
(4) to remove disincentives for the development and utilization of blocking
and filtering technologies that empower parents to restrict their children's access to objectionable
or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws
to deter and punish trafficking in obscenity, stalking, and harassment by means of
computer.
(c) Protection for "Good Samaritan" blocking and screening of offensive material.
(1) Treatment of
publisher or speaker. No provider or user of an interactive computer service shall
be treated as the publisher or speaker of any information provided by another
information content provider.
(2) Civil liability. No provider or user of an interactive computer
service shall be held liable on account of--
(A) any action voluntarily taken
in good faith to restrict access to or availability of material that the
provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing,
or otherwise objectionable, whether or not such material is constitutionally protected; or
(B)
any action taken to enable or make available to information content providers or
others the technical means to restrict access to material described in paragraph (1)
[subparagraph (A)].
(d) Obligations of interactive computer service. A provider of interactive computer service
shall, at the time of entering an agreement with a customer for the
provision of interactive computer service and in a manner deemed appropriate by the
provider, notify such customer that parental control protections (such as computer hardware, software,
or filtering services) are commercially available that may assist the customer in limiting
access to material that is harmful to minors. Such notice shall identify, or
provide the customer with access to information identifying, current providers of such protections.
(e)
Effect on other laws.
(1) No effect on criminal law. Nothing in this section
shall be construed to impair the enforcement of section 223 or 231 of
this Act, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation
of children) of title 18, United States Code, or any other Federal criminal
statute.
(2) No effect on intellectual property law. Nothing in this section shall be
construed to limit or expand any law pertaining to intellectual property.
(3) State law.
Nothing in this section shall be construed to prevent any State from enforcing
any State law that is consistent with this section. No cause of action
may be brought and no liability may be imposed under any State or
local law that is inconsistent with this section.
(4) No effect on communications privacy
law. Nothing in this section shall be construed to limit the application of
the Electronic Communications Privacy Act of 1986 or any of the amendments made
by such Act, or any similar State law.
(f) Definitions. As used in this
section:
(1) Internet. The term "Internet" means the international computer network of both Federal
and non-Federal interoperable packet switched data networks.
(2) Interactive computer service. The term "interactive
computer service" means any information service, system, or access software provider that provides
or enables computer access by multiple users to a computer server, including specifically
a service or system that provides access to the Internet and such systems
operated or services offered by libraries or educational institutions.
(3) Information content provider. The
term "information content provider" means any person or entity that is responsible, in
whole or in part, for the creation or development of information provided through
the Internet or any other interactive computer service.
(4) Access software provider. The term
"access software provider" means a provider of software (including client or server software),
or enabling tools that do any one or more of the following:
(A)
filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content;
or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate
content.
"The Internet
is an international network of interconnected computers," currently used by approximately 40 million
people worldwide. Reno v. ACLU, 138 L. Ed. 2d 874, 117 S. Ct. 2329, 2334 (1997). One of the many means by which individuals access the Internet
is through an interactive computer service. These services offer not only a connection
to the Internet as a whole, but also allow their subscribers to access
information communicated and stored only on each computer service's individual proprietary network. Id.
AOL is just such an interactive computer service. Much of the information transmitted
over its network originates with the company's millions of subscribers. They may transmit
information privately via electronic mail, or they may communicate publicly by posting messages
on AOL bulletin boards, where the messages may be read by any AOL
subscriber.
… On April 25, 1995, an unidentified person posted a message on an
AOL bulletin board advertising "Naughty Oklahoma T-Shirts." The posting described the sale of
shirts featuring offensive and tasteless slogans related to the April 19, 1995, bombing
of the Alfred P. Murrah Federal Building in Oklahoma City. Those interested in
purchasing the shirts were instructed to call "Ken" at Zeran's home phone number
in Seattle, Washington. As a result of this anonymously perpetrated prank, Zeran received
a high volume of calls, comprised primarily of angry and derogatory messages, but also
including death threats. Zeran could not change his phone number because he relied
on its availability to the public in running his business out of his
home. Later that day, Zeran called AOL and informed a company representative of
his predicament. The employee assured Zeran that the posting would be removed from
AOL's bulletin board but explained that as a matter of policy AOL would
not post a retraction. The parties dispute the date that AOL removed this
original posting from its bulletin board.
On April 26, the next day, an unknown
person posted another message advertising additional shirts with new tasteless slogans related to
the Oklahoma City bombing. Again, interested buyers were told to call Zeran's phone
number, to ask for "Ken," and to "please call back if busy" due
to high demand. The angry, threatening phone calls intensified. Over the next four
days, an unidentified party continued to post messages on AOL's bulletin board, advertising
additional items including bumper stickers and key chains with still more offensive slogans.
During this time period, Zeran called AOL repeatedly and was told by company
representatives that the individual account from which the messages were posted would soon
be closed. Zeran also reported his case to Seattle FBI agents. By April
30, Zeran was receiving an abusive phone call approximately every two minutes.
Meanwhile, an
announcer for Oklahoma City radio station KRXO received a copy of the first
AOL posting. On May 1, the announcer related the message's contents on the
air, attributed them to "Ken" at Zeran's phone number, and urged the listening
audience to call the number. After this radio broadcast, Zeran was inundated with
death threats and other violent calls from Oklahoma City residents. Over the next
few days, Zeran talked to both KRXO and AOL representatives. He also spoke
to his local police, who subsequently surveilled his home to protect his safety.
By May 14, after an Oklahoma City newspaper published a story exposing the
shirt advertisements as a hoax and after KRXO made an on-air apology, the
number of calls to Zeran's residence finally subsided to fifteen per day.
Zeran first
filed suit on January 4, 1996, against radio station KRXO in the United
States District Court for the Western District of Oklahoma. On April 23, 1996,
he filed this separate suit against AOL in the same court. Zeran did not
bring any action against the party who posted the offensive messages. n1 After
Zeran's suit against AOL was transferred to the Eastern District of Virginia pursuant
to 28 U.S.C. § 1404(a), AOL answered Zeran's complaint and interposed 47 U.S.C. § 230 as an affirmative defense. AOL
then moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). [*330] The district
court granted AOL's motion, and Zeran filed this appeal.
- - - - -
- - - - - - - - - Footnotes - - -
- - - - - - - - - - - -
n1 Zeran
maintains that AOL made it impossible to identify the original party by failing
to maintain adequate records of its users. The issue of AOL's record keeping
practices, however, is not presented by this appeal.
- - - - - -
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- - - - - - - -
II.A.
Because § 230 was successfully advanced by
AOL in the district court as a defense to Zeran's claims, we shall
briefly examine its operation here. Zeran seeks to hold AOL liable for defamatory
speech initiated by a third party. He argued to the district court that
once he notified AOL of the unidentified third party's hoax, AOL had a
duty to remove the defamatory posting promptly, to notify its subscribers of the message's
false nature, and to effectively screen future defamatory material. Section 230 entered this
litigation as an affirmative defense pled by AOL. The company claimed that Congress
immunized interactive computer service providers from claims based on information posted by a
third party.
The relevant portion of § 230 states: "No provider or user of an
interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider." 47 U.S.C. § 230(c)(1). By its plain language, § 230
creates a federal immunity to any cause of action that would make service
providers liable for information originating with a third-party user of the service. Specifically,
§ 230 precludes courts from entertaining claims that would place a computer service provider
in a publisher's role. Thus, lawsuits seeking to hold a service provider liable
for its exercise of a publisher's traditional editorial functions -- such as deciding
whether to publish, withdraw, postpone or alter content -- are barred.
The purpose of
this statutory immunity is not difficult to discern. Congress recognized the threat that
tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet
medium. The imposition of tort liability on service providers for the communications of
others represented, for Congress, simply another form of intrusive government regulation of speech.
Section 230 was enacted, in part, to maintain the robust nature of Internet
communication and, accordingly, to keep government interference in the medium to a minimum.
In specific statutory findings, Congress recognized the Internet and interactive computer services as
offering "a forum for a true diversity of political discourse, unique opportunities for
cultural development, and myriad avenues for intellectual activity." Id. § 230(a)(3). It also found
that the Internet and interactive computer services "have flourished, to the benefit of
all Americans, with a minimum of government regulation." Id. § 230(a)(4) (emphasis added). Congress
further stated that it is "the policy of the United States . .
. to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or State regulation." Id.
§ 230(b)(2) (emphasis added).
None of this means, of course, that the original culpable party
who posts defamatory messages would escape accountability. While Congress acted to keep government
regulation of the Internet to a minimum, it also found it to be
the policy of the United States "to ensure vigorous enforcement of Federal criminal
laws to deter and punish trafficking in obscenity, stalking, and harassment by means
of computer." Id. § 230(b)(5). Congress made a policy choice, however, not to deter
harmful online speech through the separate route of imposing tort liability on companies
that serve as intermediaries for other parties' potentially injurious messages.
Congress' purpose in providing
the § 230 immunity was thus evident. Interactive computer services have millions of users.
See Reno v. ACLU, 117 S. Ct. at 2334 (noting that at time of district court trial, "commercial online services had
almost 12 million individual subscribers"). The amount of information communicated via interactive computer
services is therefore staggering. The specter of tort liability in an area of such
prolific speech would have an obvious chilling effect. It would be impossible for
service providers to screen each of their millions of postings for possible problems.
Faced with potential liability for each message republished by their services, interactive computer
service providers might choose to severely restrict the number and type of messages
posted. Congress considered the weight of the speech interests implicated and chose to
immunize service providers to avoid any such restrictive effect.
Another important purpose of § 230
was to encourage service providers to self-regulate the dissemination of offensive material over
their services. In this respect, § 230 responded to a New York state court
decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 N.Y. Misc. LEXIS 229, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). There, the plaintiffs sued Prodigy --
an interactive computer service like AOL -- for defamatory comments made by an
unidentified party on one of Prodigy's bulletin boards. The court held Prodigy to
the strict liability standard normally applied to original publishers of defamatory statements, rejecting
Prodigy's claims that it should be held only to the lower "knowledge" standard usually
reserved for distributors. The court reasoned that Prodigy acted more like an original
publisher than a distributor both because it advertised its practice of controlling content
on its service and because it actively screened and edited messages posted on
its bulletin boards.
Congress enacted § 230 to remove the disincentives to self-regulation created by
the Stratton Oakmont decision. Under that court's holding, computer service providers who regulated
the dissemination of offensive material on their services risked subjecting themselves to liability,
because such regulation cast the service provider in the role of a publisher.
Fearing that the specter of liability would therefore deter service providers from blocking
and screening offensive material, Congress enacted § 230's broad immunity "to remove disincentives for
the development and utilization of blocking and filtering technologies that empower parents to
restrict their children's access to objectionable or inappropriate online material." 47 U.S.C. § 230(b)(4). In line
with this purpose, § 230 forbids the imposition of publisher liability on a service
provider for the exercise of its editorial and self-regulatory functions.
…
Zeran next contends that interpreting
§ 230 to impose liability on service providers with knowledge of defamatory content on
their services is consistent with the statutory purposes outlined in Part IIA. Zeran
fails, however, to understand the practical implications of notice liability in the interactive
computer service context. Liability upon notice would defeat the dual purposes advanced by
§ 230 of the CDA. Like the strict liability imposed by the Stratton Oakmont
court, liability upon notice reinforces service providers' incentives to restrict speech and abstain
from self-regulation.
If computer service providers were subject to distributor liability, they would face potential
liability each time they receive notice of a potentially defamatory statement -- from
any party, concerning any message. Each notification would require a careful yet rapid
investigation of the circumstances surrounding the posted information, a legal judgment concerning the
information's defamatory character, and an on-the-spot editorial decision whether to risk liability by
allowing the continued publication of that information. Although this might be feasible for
the traditional print publisher, the sheer number of postings on interactive computer services
would create an impossible burden in the Internet context. Cf. Auvil v. CBS
60 Minutes, 800 F. Supp. 928, 931 (E.D. Wash. 1992) (recognizing that it
is unrealistic for network affiliates to "monitor incoming transmissions and exercise on-the-spot discretionary
calls"). Because service providers would be subject to liability only for the publication
of information, and not for its removal, they would have a natural incentive
simply to remove messages upon notification, whether the contents were defamatory or not.
See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) (recognizing that fears of unjustified liability produce a chilling effect antithetical to
First Amendment's protection of speech). Thus, like strict liability, liability upon notice has
a chilling effect on the freedom of Internet speech.
Similarly, notice-based liability would deter
service providers from regulating the dissemination of offensive material over their own services.
Any efforts by a service provider to investigate and screen material posted on
its service would only lead to notice of potentially defamatory material more frequently
and thereby create a stronger basis for liability. Instead of subjecting themselves to
further possible lawsuits, service providers would likely eschew any attempts at self-regulation.
More generally,
notice-based liability for interactive computer service providers would provide third parties with a
no-cost means to create the basis for future lawsuits. Whenever one was displeased
with the speech of another party conducted over an interactive computer service, the
offended party could simply "notify" the relevant service provider, claiming the information to
be legally defamatory. In light of the vast amount of speech communicated through interactive
computer services, these notices could produce an impossible burden for service providers, who
would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive
liability. Because the probable effects of distributor liability on the vigor of Internet
speech and on service provider self-regulation are directly contrary to § 230's statutory purposes,
we will not assume that Congress intended to leave liability upon
notice intact.
This is a defamation case revolving around a statement published on the Internet
by defendant Matt Drudge. On August 10, 1997, the following was available to
all having access to the Internet:
The DRUDGE REPORT has learned that top GOP operatives who feel there is a double-standard of only reporting republican shame believe they are holding an ace card: New White House recruit Sidney Blumenthal has a spousal abuse past that has been effectively covered up.
The accusations are explosive.
There are court records of Blumenthal's violence against his wife, one influential republican, who demanded anonymity, tells the DRUDGE REPORT.
...
In late May or early June of 1997, at approximately the time when
the licensing agreement expired, defendant Drudge entered into a written license agreement with
AOL. The agreement made the Drudge Report available to all members of AOL's
service for a period of one year. In exchange, defendant Drudge received a
flat monthly "royalty payment" of $ 3,000 from AOL. During the time relevant
to this case, defendant Drudge has had no other source of income. Under
the licensing agreement, Drudge is to create, edit, update and "otherwise manage" the
content of the Drudge Report, and AOL may "remove content that AOL reasonably
determine[s] to violate AOL's then standard terms of service." Drudge transmits new editions
of the Drudge Report by e-mailing them to AOL. AOL then posts the
new editions on the AOL service. Drudge also has continued to distribute each
new edition of the Drudge Report via e-mail and his own web site.
Late at night on the evening of Sunday, August 10, 1997 (Pacific Daylight
Time), defendant Drudge wrote and transmitted the edition of the Drudge Report that
contained the alleged defamatory statement about the Blumenthals. Drudge transmitted the report from
Los Angeles, California by e-mail to his direct subscribers and by posting both
a headline and the full text of the Blumenthal story on his world
wide web site. He then transmitted the text but not the headline to
AOL, which in turn made it available to AOL subscribers.
After receiving a
letter from plaintiffs' counsel on Monday, August 11, 1997, Complaint, Ex. 6, defendant
Drudge retracted the story through a special edition of the Drudge Report posted
on his web site and e-mailed to his subscribers. At approximately 2:00 a.m.
on Tuesday, August 12, 1997, Drudge e-mailed the retraction to AOL which posted
it on the AOL service. Defendant Drudge later publicly apologized to the Blumenthals..
II. AOL's MOTION FOR SUMMARY JUDGMENT
…The term 'Internet' means the international computer network
of both Federal and non-Federal interoperable packet switched data networks." 47 U.S.C. § 230(e)(1). The Internet
is "not a physical or tangible entity, but rather a giant network which
interconnects innumerable smaller groups of linked computer networks." ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996), aff'd, 138 L. Ed. 2d 874, 117 S. Ct. 2329 (1997). The "web" is a
"vast decentralized collection of documents containing text, visual images, and even audio clips
. . . . The web is designed to be inherently accessible from
every Internet site in the world." Stephen Wilske and Teresa Schiller, International Jurisdiction
In Cyberspace: Which States May Regulate The Internet? 50 FED. COM. L. J. 117, 140 (1997).
[*49] The near instantaneous possibilities
for the dissemination of information by millions of different information providers around the
world to those with access to computers and thus to the Internet have
created ever-increasing opportunities for the exchange of information and ideas in "cyberspace." n8
This information revolution has also presented unprecedented challenges relating to rights of privacy
and reputational rights of individuals, to the control of obscene and pornographic materials,
and to competition among journalists and news organizations for instant news, rumors and
other information that is communicated so quickly that it is too often unchecked
and unverified. Needless to say, the legal rules that will govern this new
medium are just beginning to take shape.
…
B. Communications Decency Act of 1996, Section 230
…
Plaintiffs concede that AOL is
a "provider . . . of an interactive computer service" for purposes of
Section 230, and that if AOL acted exclusively as a provider of an
interactive computer service it may not be held liable for making the Drudge
Report available to AOL subscribers. See 47 U.S.C. § 230(c)(1). They also concede that Drudge is
an "information content provider" because he wrote the alleged defamatory material about the
Blumenthals contained in the Drudge Report. While plaintiffs suggest that AOL is responsible
along with Drudge because it had some role in writing or editing the
material in the Drudge Report, they have provided no factual support for that
assertion. Indeed, plaintiffs affirmatively state that "no person, other than Drudge himself, edited,
checked, verified, or supervised the information that Drudge published in the Drudge Report."
It also is apparent to the Court that there is no evidence to
support the view originally taken by plaintiffs that Drudge is or was an
employee or agent of AOL, and plaintiffs seem to have all but abandoned
that argument.
.
… While Section 230 does not preclude joint liability for the joint
development of content, AOL maintains that there simply is no evidence here that
AOL had any role in creating or developing any of the information in
the Drudge Report. The Court agrees. It is undisputed that the Blumenthal story
was written by Drudge without any substantive or editorial involvement by AOL. AOL
was nothing more than a provider of an interactive computer service on which
the Drudge Report was carried, and Congress has said quite clearly that such
a provider shall not be treated as a "publisher or speaker" and therefore
may not be held liable in tort. 47 U.S.C. § 230(c)(1).
…
Plaintiffs make the additional argument, however,
that Section 230 of the Communications Decency Act does not provide immunity to
AOL in this case because Drudge was not just an anonymous person who sent
a message over the Internet through AOL. He is a person with whom
AOL contracted, whom AOL paid $ 3,000 a month -- $ 36,000 a
year,
Drudge's sole, consistent source of income -- and whom AOL promoted to its
subscribers and potential subscribers as a reason to subscribe to AOL. Furthermore, the
license agreement between AOL and Drudge by its terms contemplates more than a
passive role for AOL; in it, AOL reserves the "right to remove, or
direct [Drudge] to remove, any content which, as reasonably determined by AOL .
. . . violates AOL's then-standard Terms of Service. . . ." By
the terms of the agreement, AOL also is "entitled to require reasonable changes
to. . . content, to the extent such content will, in AOL's good
faith judgment, adversely affect operations of the AOL network."
In addition, shortly after it
entered into the licensing agreement with Drudge, AOL issued a press release making
clear the kind of material Drudge would provide to AOL subscribers -- gossip
and rumor -- and urged potential subscribers to sign onto AOL in order
to get the benefit of the Drudge Report. The press release was captioned:
"AOL Hires Runaway Gossip Success Matt Drudge." [I]t noted that "maverick gossip columnist
Matt Drudge has teamed up with America Online," and stated: "Giving the Drudge
Report a home on America Online (keyword: Drudge) opens up the floodgates to
an audience ripe for Drudge's brand of reporting . . . AOL has
made Matt Drudge instantly accessible to members who crave instant gossip and news
breaks." Why is this different, the Blumenthals suggest, from AOL advertising and promoting
a new purveyor of child pornography or other offensive material? Why should AOL
be permitted to tout someone as a gossip columnist or rumor monger who
will make such rumors and gossip "instantly accessible" to AOL subscribers, and then
claim immunity when that person, as might be anticipated, defames another?
If it were
writing on a clean slate, this Court would agree with plaintiffs. AOL has
certain editorial rights with respect to the content provided by Drudge and disseminated
by AOL, including the right to require changes in content and to remove
it; and it has affirmatively promoted Drudge as a new source of unverified
instant gossip on AOL. Yet it takes no responsibility for any damage he
may cause. AOL is not a passive conduit like the telephone company, a
common carrier with no control and therefore no responsibility for what is said
over the telephone wires. Because it has the right to exercise editorial control
over those with whom it contracts and whose words it disseminates, it would
seem only fair to hold AOL to the liability standards applied to a
publisher or, at least, like a book store owner or library, to the
liability standards applied to a distributor. But Congress has made a different policy
choice by providing immunity even where the interactive service provider has an active,
even aggressive role in making available content prepared by others. In some sort
of tacit quid pro quo arrangement with the service provider community, Congress has
conferred immunity from tort liability as an incentive to Internet service providers to
self-police the Internet for obscenity and other offensive material, even where the self-policing
is unsuccessful or not even attempted.
… As the Fourth Circuit stated in Zeran:
"Congress enacted § 230 to remove . . . disincentives to self-regulation . .
. . Fearing that the specter of liability would. . . deter service
providers from blocking and screening offensive material. . . . § 230 forbids the
imposition of publisher liability on a service provider for the exercise of its
editorial and self-regulatory functions." Zeran v. America Online, Inc., 129 F.3d at 331. n.
- - - - - - - - -
- - - - - Footnotes - - - - - - -
- - - - - - - -
n.
One of the specific purposes of
this section is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions
which have treated such providers and users as publishers or speakers of content
that is not their own because they have restricted access to objectionable material.
The conferees believe that such decisions create serious obstacles to the important federal
policy of empowering parents to determine the content of communications their children receive
through interactive computer services.
H.R. CONF. REP. No. 104-458, at 194 (1996).
- - - - -
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- - - - - - - - -
Any attempt to distinguish between
"publisher" liability and notice-based "distributor" liability and to argue that Section 230 was
only intended to immunize the former would be unavailing. Congress made no distinction
between publishers and distributors in providing immunity from liability. As the Fourth Circuit
has noted: "If computer service providers were subject to distributor liability, they would
face potential liability each time they receive notice of a potentially defamatory statement
-- from any party, concerning any message," and such notice-based liability "would deter
service providers from regulating the dissemination of offensive material over their own services"
by confronting them with "ceaseless choices of suppressing controversial speech or sustaining prohibitive
liability" exactly what Congress intended to insulate them from in Section 230. Zeran v. America Online, Inc., 129 F.3d at 333. Cf.
Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139-40 (S.D.N.Y. 1991) (decided before enactment of Communications Decency Act). While it appears to this Court
that AOL in this case has taken advantage of all the benefits conferred
by Congress in the Communications Decency Act, and then some, without accepting any
of the burdens that Congress intended, the statutory language is clear: AOL is
immune from suit, and the Court therefore must grant its motion for summary
judgment.
FACTUAL
BACKGROUND
There is a federal court lawsuit pending in the Central District of California
in which the shareholders of TMRT have brought a shareholder derivative class action
against the company and its officers and directors alleging fraud on the market.
In that litigation, the defendants have asserted as an affirmative defense that no
act or omission by the defendants caused the plaintiffs' injury. By subpoena, TMRT
seeks to obtain the identity of twenty-three speakers who have participated anonymously on
Internet message boards operated by InfoSpace. That subpoena is the subject of the
present motion to quash.
InfoSpace is a Seattle based Internet company that operates a
website called "Silicon Investor." … One of the Internet bulletin boards on the Silicon
Investor website is specifically devoted to TMRT. According to the brief filed on
behalf of J. Doe, "to date, almost 1500 messages have been posted on
the TMRT board, covering an enormous variety of topics and posters. Investors and
members of the public discuss the latest news about the company, what new
businesses it may develop, the strengths and weaknesses of the company's operations, and
what its managers and its employees might do better." Past messages posted on
the site are archived, so any new user can read and print copies
of prior postings.
Some of the messages posted on the TMRT site have been
less than flattering to the company. In fact, some have been downright nasty.
For example, a user calling himself "Truthseeker" posted a message stating "TMRT is
a Ponzi scam that Charles Ponzi would be proud of. . . .
The company's CEO, Magliarditi, has defrauded employees in the past. The company's other
large shareholder, Rebeil, defrauded customers in the past." Another poster named "Cuemaster" indicated
that "they were dumped by their accountants ... these guys are friggin liars
... why haven't they told the public this yet??? Liars and criminals!!!!!" Another
user, not identified in the exhibits, wrote "Lying, cheating, thieving, stealing, lowlife criminals!!!!"
Other postings advised TMRT investors to sell their stock. "Look out below!!!! This
stock has had it ... get short or sell your position now while
you still can." "They [TMRT] are not building anything, except extensions on their
homes...bail out now."
TMRT, the defendant in the California lawsuit, issued the present subpoena
to InfoSpace pursuant to Fed.R.Civ.P. 45(a)(2). The subpoena seeks, among other things, "all identifying
information and documents, including, but not limited to, computerized or computer stored records
and logs, electronic mail (E-mail), and postings on your online message boards," concerning
a list of twenty-three InfoSpace users, including Truthseeker, Cuemaster, and the current J.
Doe, who used the pseudonym NoGuano. These users have posted messages on the
TMRT bulletin board or have communicated via the Internet with users who have
posted such messages. The subpoena would require InfoSpace to disclose the subscriber information
for these twenty-three users, thereby stripping them of their Internet anonymity.
InfoSpace notified these users by e-mail that it had received the subpoena,
and gave them time to file a motion to quash. One such user
who used the Internet pseudonym NoGuano now seeks to quash the subpoena. n
-
- - - - - - - - - - - - -
Footnotes - - - - - - - - - - - -
- - -
n NoGuano has moved anonymously to quash the subpoena. At oral
argument, counsel for all parties agreed that NoGuano was entitled to appear before
this Court anonymously on the motion to quash. When an individual wishes to
protect their First Amendment right to speak anonymously, he or she must be
entitled to vindicate that right without disclosing their identity. Accordingly, this Court grants
NoGuano's request to proceed under a pseudonym for the purposes of this motion.
However, this Court does not hold that a person would be allowed to
proceed anonymously in all cases or under any circumstances. The Court need not
reach this issue in light of the parties' agreement to allow Doe to
proceed anonymously before this Court.
- - - - - - - - -
- - - End Footnotes- - - - - - - - -
- - - - -
NoGuano alleges that enforcement of the subpoena would violate
his or her First Amendment right to speak anonymously. In response to the
motion this Court issued a Minute Order directing the interested parties TMRT, InfoSpace,
and NoGuano to file additional briefing. All interested parties filed briefing as directed
and participated in oral argument.
DISCUSSION
The Internet represents a revolutionary advance in communication technology.
It has been suggested that the Internet may be the "greatest innovation in
speech since the invention of the printing press[.]" See Raymond Shih Ray Ku,
Open Internet Access and Freedom of Speech: A First Amendment Catch-22, 75 Tul. L. Rev. 87, 88 (2000). It allows
people from all over the world to exchange ideas and information freely and
in "real-time." Through the use of the Internet, "any person with [**7] a phone
line can become a town crier with a voice that resonates farther than
it could from any soapbox." Reno v. ACLU, 521 U.S. 844, 870, 138 L. Ed. 2d 874, 117 S. Ct. 2329 (1997).
The rapid growth of Internet communication and Internet
commerce has raised novel and complex legal issues and has challenged existing legal
doctrine in many areas. This motion raises important and challenging questions of: (1)
what is the scope of an individual's First Amendment right to speak anonymously
on the Internet, and (2) what showing must be made by a private
party seeking to discover the identity of anonymous Internet users through the enforcement
of a civil subpoena? n4
A. The anonymity of Internet speech is protected by
the First Amendment.
…The right to speak anonymously was of fundamental importance to the
establishment of our Constitution. Throughout the revolutionary and early federal period in American
history, anonymous speech and the use of pseudonyms were powerful tools of political
debate. The Federalist Papers (authored by Madison, Hamilton, and Jay) were written anonymously
under the name "Publius." The anti-federalists responded with anonymous articles of their own, authored
by "Cato" and "Brutus," among others. See generally McIntyre, 514 U.S. at 341-42. Anonymous speech is a great
tradition that is woven into the fabric of this nation's history.
The right to
speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich,
diverse, and far ranging exchange of ideas. The "ability to speak one's mind"
on the Internet "without the burden of the other party knowing all the
facts about one's identity can foster open communication and robust debate." Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). People who
have committed no wrongdoing should be free to participate in online forums without
fear that their identity will be exposed under the authority of the court.
Id.
When speech touches on matters of public political life, such as debate over
the qualifications of candidates, discussion of governmental or political affairs, discussion of political
campaigns, and advocacy of controversial points of view, such speech has been described
as the "core" or "essence" of the First Amendment. See McIntyre, 514 U.S. at 346-47. Governmental restrictions on
such speech are entitled to "exacting scrutiny," and are upheld only where they
are "narrowly tailored to serve an overriding state interest." Id. at 347. However, even non-core speech
is entitled to First Amendment protection. "First Amendment protections are not confined to
'the exposition of ideas[.]'" Id. at 346, citing Winters v. New York, 333 U.S. 507, 510, 92 L. Ed. 840, 68 S. Ct. 665 (1948). Unlike the speech at issue in Buckley, McIntyre
and Talley, the speech here is not entitled to "exacting scrutiny," but to
normal strict scrutiny analysis….
B. Applicable legal standard.
The free exchange of ideas on the
Internet is driven in large part by the ability of Internet users to
communicate anonymously. If Internet users could be stripped of that anonymity by a
civil subpoena enforced under the liberal rules of civil discovery, this would have
a significant chilling effect on Internet communications and thus on basic First Amendment
rights. Therefore, discovery requests seeking to identify anonymous Internet users must be subjected
to careful scrutiny by the courts.
As InfoSpace has urged, "unmeritorious attempts to unmask
the identities of online speakers . . . have a chilling effect on"
Internet speech. The "potential chilling effect imposed by the unmasking of anonymous speakers
would diminish if litigants first were required to make a showing in court
of their need for the identifying information." "Requiring litigants to make such a
showing would allow [the Internet] to thrive as a forum for speakers to
express their views on topics of public concern." See InfoSpace's memorandum, docket no.
14 at 2. InfoSpace and NoGuano have accordingly urged this Court to "adopt
a balancing test requiring litigants to demonstrate . . . that their need
for identity information outweighs anonymous online speakers' First Amendment rights[.]" Id.
In the context
of a civil subpoena issued pursuant to Fed.R.Civ.P. 45, this Court must determine when
and under what circumstances a civil litigant will be permitted to obtain the
identity of persons who have exercised their First Amendment right to speak anonymously.
There is little in the way of persuasive authority to assist this Court.
However, courts that have addressed related issues have used balancing tests to decide
when to protect an individual's First Amendment rights.
In Columbia Ins. Co. v. Seescandy.com,
the plaintiff was unable to identify the defendants when filing the complaint. That
complaint named J. Doe defendants, and alleged, inter alia, the infringement of a
registered trademark when those defendants registered the "Seescandy.com" domain name. See Seescandy.com, 185 F.R.D. at 576. The J.
Doe defendants had engaged in the allegedly tortious conduct entirely online, and anonymously.
Id. at 578. The court considered whether to allow discovery to uncover the identity of the
defendants so that they might be properly served and subject to the jurisdiction
of the court. The court recognized the defendant's "legitimate and valuable right to
participate in online forums anonymously or pseudonymously." Id.
Accordingly, the court ruled that four
limiting principals would apply to such discovery. The court required that the plaintiff
identify the individual with some specificity so the court could determine if they
were truly an entity amenable to suit, and that the plaintiff identify all
previous steps taken to locate the defendant, justifying the failure to properly serve.
Id. at 578-579. The Seescandy.com court imposed two other requirements that have direct relevance here. First,
the plaintiff was required to show that the case would withstand a motion
to dismiss, "to prevent abuse of this extraordinary application of the discovery process
and to insure that plaintiff has standing[.]" Id. at 579-80. Second, the plaintiff was required to
file a discovery request justifying the need for the information requested. Id. at 580. Therefore, the
court required the plaintiff to demonstrate that the suit, and the resulting discovery
sought, was not frivolous, and to demonstrate the need for the identifying information.
The
standard for disclosing the identity of a non-party witness must be higher than
that articulated in Seescandy.com… When the anonymous Internet user is not a party
to the case, the litigation can go forward without the disclosure of their
identity. Therefore, non-party disclosure is only appropriate in the exceptional case where the
compelling need for the discovery sought outweighs the First Amendment rights of the
anonymous speaker.
Accordingly, this Court adopts the following standard for evaluating a civil subpoena
that seeks the identity of an anonymous Internet user who is not a
party to the underlying litigation. The Court will consider four factors in determining
whether the subpoena should issue. These are whether: (1) the subpoena seeking the
information was issued in good faith and not for any improper purpose, (2)
the information sought relates to a core claim or defense, (3) the identifying information
is directly and materially relevant to that claim or defense, and (4) information
sufficient to establish or to disprove that claim or defense is unavailable from
any other source.
This test provides a flexible framework for balancing the First Amendment rights of
anonymous speakers with the right of civil litigants to protect their interests through
the litigation discovery process. The Court shall give weight to each of these
factors as the court determines is appropriate under the circumstances of each case.
This Court is mindful that it is imposing a high burden. "But the
First Amendment requires us to be vigilant in making [these] judgments, to guard
against undue hindrances to political conversations and the exchange of ideas." Buckley, 525 U.S. at 192....
[The court
found that while the subpoena had been issued in good faith, it did
not relate to a defense core to the litigation, the identity of the
Internet user was not relevant to TMRT's defense, and non-identity information was still
available on the InfoSpace boards.]
The Court has weighed these factors in light of
the present facts. TMRT has failed to demonstrate that the identity of these
Internet users is directly and materially relevant to a core defense in the
underlying securities litigation. Accordingly, Doe's motion to quash the subpoena is GRANTED.
IT IS
SO ORDERED.
[Plaintiff, assignee of "See's Candy Shops" trademarks, brought an action for trademark infringement based on registration and use of the domain name "seescandy.com." The domain name records changed to show different "registrants" of the domain name while the case was before the court. Plaintiff had not yet identified the person who registered the domain name, and thus had not yet served its complaint.]
D. Lowell Jensen, United States District Judge.
…Service of process can pose a special dilemma for plaintiffs in cases like this in which the tortious activity occurred entirely on-line. The dilemma arises because the defendant may have used a fictitious name and address in the commission of the tortious acts. Traditionally, the default requirement in federal court is that the plaintiff must be able to identify the defendant sufficiently that a summons can be served on the defendant. This requires that the plaintiff be able to ascertain the defendant's name and address.
As a general rule, discovery proceedings take place only after the defendant has been served; however, in rare cases, courts have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant. …
In such cases the traditional reluctance for permitting filings against John Doe defendants or fictitious names and the traditional enforcement of strict compliance with service requirements should be tempered by the need to provide injured parties with an forum in which they may seek redress for grievances. However, this need must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously. People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one's mind without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate. Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identity.
Thus some limiting principals should apply to the determination of whether discovery to uncover the identity of a defendant is warranted. The following safeguards will ensure that this unusual procedure will only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant pre-service, and will prevent use of this method to harass or intimidate.
First, the plaintiff should identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court. This requirement is necessary to ensure that federal requirements of jurisdiction and justiciability can be satisfied. See Plant v. Does, 19 F. Supp. 2d 1316 (S.D. Fla. 1998) (refusing to issue a temporary restraining order against unnamed and unserved bootleggers who had not yet committed an offense on the theory that plaintiffs have failed to establish that the Court had jurisdiction over defendants, to provide defendants with due process, and to demonstrate that an actual controversy existed). Plaintiff's papers establish that the listed defendants who remain in the case after March 4, 1999 appear to be aliases for a person known as Ravi or Robby Kumar of Artesia, California ("the Kumar defendants"). Most of the addresses listed by aliases associated with the Kumar defendants show a California domicile, which indicates that the Court likely has jurisdiction over defendants. … Most convincing of all, See's has been in contact by e-mail with a person who goes by the name "Ravi." In his e-mail message, Ravi has indicated a desire to sell the subject domain names to See's and has provided See's with evidence that consumers have been actually confused by these web sites, for which Ravi claims to hold registration rights. The Court finds that there appears to be only one person behind all these registrations, a Ravi or Robby Kumar, who may also be known as Salu Kalu. The Court finds that plaintiff has made a satisfactory showing that there is an actual person behind these acts who would be amenable to suit in federal court.
Second, the party should identify all previous steps taken to locate the elusive defendant. This element is aimed at ensuring that plaintiffs make a good faith effort to comply with the requirements of service of process and specifically identifying defendants. Plaintiff's counsel has certified that the following efforts were made to contact defendants: (1) calls were made to the two non-directory information services telephone numbers. One was a non-working number and nobody answered the other one. Simultaneous with the filing of the motion for a temporary restraining order and preliminary injunction plaintiff served its complaint, brief, and all accompanying papers to the official addresses provided to NSI, only one of which was a complete mailing address. Plaintiff also served these documents, sans exhibits, by electronic mail to the e-mail addresses associated with the domains registered by Ravi Kumar, Robby Kumar, R L, Salu Kalu, and Hostmaster DNS. Although such service is not sufficient to comply with the Federal Rules of Civil Procedure, the Court finds that such acts do show that plaintiff has made a good faith effort to specifically identify defendant and to serve notice on defendant.
Third, plaintiff should establish to the Court's satisfaction that plaintiff's suit against defendant could withstand a motion to dismiss. A conclusory pleading will never be sufficient to satisfy this element. Pre-service discovery is akin to the process used during criminal investigations to obtain warrants. The requirement that the government show probable cause is, in part, a protection against the misuse of ex parte procedures to invade the privacy of one who has done no wrong. A similar requirement is necessary here to prevent abuse of this extraordinary application of the discovery process and to ensure that plaintiff has standing to pursue an action against defendant. Thus, plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed that act. …
Lastly, the plaintiff should file a request for discovery with the Court, along with a statement of reasons justifying the specific discovery requested as well as identification of a limited number of persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information about defendant that would make service of process possible.