Delaware Supreme Court Holds that Obtaining The Identity by a Subpoena of an Anonymous Internet Poster Requires Actual Evidence of Defamation Not Just "Good Faith" Standard Applied by Some Other Court

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We have previously noted the risks of being hailed into foreign courts based on material posted on the Internet. See “Defamation on the Internet: Risks of Getting Hailed into Court in Distant Locations". Now the heat is starting to turn up even in the United States, where we have much more significant First Amendment protections than most foreign countries do. Persons or companies who are the subject of false or defamatory Internet postings are no longer inclined to sit back and do nothing.

Lawsuits are now a routine response to such postings. The first problem, however, is to obtain the identity of the poster. The Internet Service Provider (“ISP”) is not likely to cough up the identity. This means the plaintiff must file a lawsuit naming one or more “John Doe” defendants, and then issue a subpoena to the ISP demanding that it identify the person who posted the challenged communication.

These subpoenas are controversial. Courts have struggled with what standard to apply in issuing such subpoenas, recognizing that there is a very real opportunity for chilling free speech through identifying anonymous Internet communicators who may or may not have violated any rights of the plaintiff.

Some courts have applied a simple “good faith” standard that merely seeks to confirm that the plaintiff has filed a lawsuit in good faith, believing there is a valid claim. This approach has been widely criticized as potentially leading to abuse of the subpoena power.

In a decision that will be widely cited and probably followed by many courts, the Delaware Supreme Court has held in the matter of John Doe No. 1 v. Cahill, 884 A2d 451, that the good‑faith standard is not sufficient to protect legitimate Internet communications and that actual proof of some violation of law will be required before a subpoena is issued. The court began its opinion by noting:

The internet is a unique democratizing medium unlike anything that has come before. The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate . . . . [T]he internet now allows anyone with a phone line to “become a town crier with a voice that resonates farther than it could from any soapbox.” Through the internet, speakers can bypass mainstream media to speak directly to “an audience larger and more diverse than any the Framers could have imagined.”

The court also noted that Internet speech is often anonymous, with the result that “‘the audience must evaluate [a] speaker’s ideas based on her words alone.’ ‘This unique feature of [the internet] promises to make public debate in cyberspace less hierarchical and discriminatory’ than in the real world because it disguises status indicators such as race, class, and age.” The court characterized Internet speech in blogs and chat rooms as “the modern equivalent of political pamphleteering.”

Cahill involved two statements, posted on an Internet blog sponsored by the Delaware State News, concerning Cahill’s performance as a city councilman of Smyrna, Delaware. The statements were pointed in their criticism of Cahill, but not likely to surmount First Amendment protection for opinions expressed about public figures. Cahill deposed the owner of the Internet blog and obtained the IP address associated with the poster. Armed with the IP address, Cahill subpoenaed the ISP to obtain the identity of the address owner. A federal statute, 47 USC § 551(c)(2), requires a court order to an ISP, and notice to the ISP subscriber, before the ISP can disclose the identity of the subscriber to a third party. Upon receipt of this notice, the John Doe defendant filed a motion for a protective order, seeking to prevent Cahill from obtaining his or her identity.

The trial court applied the “good faith” standard and denied the motion. On appeal to the Delaware Supreme Court, the court reversed, announcing a new standard for Delaware courts to apply “when faced with a public figure plaintiff’s discovery request that seeks to unmask the identity of an anonymous defendant who has posted allegedly defamatory material on the internet.” After considering various options for such a standard, the court decided to require “a showing of prima facie evidence sufficient to withstand a motion for summary judgment.”

Comment: Many cases currently pending in the United States will not meet this new standard.

Many cases currently pending in the United States will not meet this new standard.

The decision is likely to be controversial and also likely to be followed by many other courts, given the stature of the Delaware Supreme Court and its issuance of a detailed opinion balancing the various rights involved in this case.

The Delaware Supreme Court was particularly concerned that the possibility of losing anonymity “could intimidate anonymous posters into self-censoring their comments or simply not commenting at all,” something that would clearly occur if subpoenas were issued on a routine basis in these cases. The court also observed that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics, with no intention of pursuing the litigation, leaving the exposed defendant to suffer revenge or retribution by those unhappy with the communications.

One point to watch for in the future is whether this approach will be applied to cases not involving public figures but involving publicly traded companies, with plaintiffs challenging allegedly false Internet postings about those companies, a common source for “John Doe” lawsuits.

And here is a final thought: Tucked away in the opinion is a far-reaching comment on Internet defamation claims generally, at least when they arise out of blogs or chat rooms. The court said, “Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely. . . . ‘[I]n this context, readers are unlikely to view messages posted anonymously as assertions of fact.’”

At least in Delaware, those wishing to challenge online communications will now have two hurdles to surmount. First, they must satisfy the new standard for obtaining a subpoena to identify the anonymous poster; and second, they must satisfy a court that the material posted would be interpreted as constituting fact rather than opinion. Interestingly, instead of remanding Cahill to the trial court to apply the new standard, the Delaware Supreme Court ruled summarily that “no reasonable person could have interpreted these statements as being anything other than opinion.”

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