Though the Internet is often thought of as anonymous, this seeming anonymity has not done away with tort liability for defamatory pr libelous statements. While it is more difficult to find the identity of an anonymous Internet poster through an Internet IP address, new internet libel case law has established the appropriate procedures for subpoenaing the anonymous poster of defamatory statements. In Quixtar Inc. v. Signature Mgmt. Team, LLC, 2008 U.S. Dist. LEXIS 56593 (D. Nev., July 7, 2008, Decided), the US District Court of Nevada established a four-part test for subpoenaing an anonymous defamer.
Quixtar argued that Signature engaged in a concerted effort to induce Quixtar’s Independent Business Operators to move from Quixtar’s multi-level marketing system to Signature. A Signature employee was deposed by Quixtar and refused to comment on whether he was behind various blogs that were said to defame Quixtar and its owners. In examining the motion to compel the employee to respond to Quixtar’s questions, the court noted that “the weight of authority holds that courts must adopt procedures that strike a balance between the plaintiff's need to destroy the Doe's anonymity and the anonymous speaker's First Amendment rights. Moreover, no decision has simply rejected procedural precautions on the basis that the anonymous speech was commercial in nature.”
The court looked to prior Michigan case law concerning internet libel and defamation situations where an ISP was compelled to identify an anonymous writer. After examining the options, the court adopted the standard of Dendrite International, Inc. v. Doe No. 3, 342 N.J. Super. 134, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) as articulated in Doe v. Cahill, 884 A.2d 451 (Del. 2005). There, the court stated that a plaintiff must:
1. undertake efforts to notify the anonymous poster that he is the subject of a subpoena or application for an order of disclosure, and to withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to the application. In the internet context, the plaintiff's efforts should include posting a message of notification of the discovery request to the anonymous defendant on the same message board as the original allegedly defamatory posting;
2. set forth the exact statements purportedly made by the anonymous poster that the plaintiff alleges constitute defamatory speech;
3. satisfy the prima facie or "summary judgment standard";
4. balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity in determining whether to allow the plaintiff to properly proceed.
As you can see, the Dendrite/Cahill lineage establishes a fact-based balancing test that pits the anonymous user’s First Amendment rights against the need to disclose. Whether you are an anonymous blogger or a defamed party, it is important to hire an Internet libel attorney or law firm that is experienced in this area to examine your factual situation and establish an intensive fact-based defense or prosecution of a subpoena.