August 10, 2010

Internet Lawyer Alert: Ninth Circuit Lowers the Standard for Identifying Anonymous Internet Speakers

The problem of identifying who wrote that vicious article, blog post or comment is a thorny one for anyone who has experienced defamation of character on the internet first hand.  In deciding whether to grant a petition and/or cross-petition for a writ of mandamus the Ninth Circuit rejected application of the high-bar it had previously set with the Cahill standard for deciding whether to compel the identification of anonymous Internet speakers.  This decision has implications for clients who have been the object of libel by an unknown author, on the internet.

Circuit Judges Sidney R. Thomas, M. Margaret McKeown and Jay S. Bybee determined that the type of speech involved in this action was commercial speech and the type involved in the Cahill case was in the more highly protected category of political speech. Thus the two cases are distinguishable and the district court erred in applying the Cahill standard to decide In re: Anonymous Online Speakers v. United States District Court for the District of Nevada Reno, No. 09-71265 (9th Cir. July 12, 2010).

defamation of character So, what is the newest Ninth Circuit standard for deciding whether to compel the identification of anonymous Internet speakers?

They haven’t decided. After drawing attention to the fact that the Ninth Circuit has not previously considered First Amendment claims of an anonymous, non-party Internet speaker in a circumstance involving free speech, the Court stated, “we leave to the district court the details of fashioning the appropriate scope and procedures for disclosure of the identity of the anonymous speakers.” In re: Anonymous Online Speakers v. United States District Court for the District of Nevada Reno.

The Ninth Circuit was able to come to the decision that neither party is entitled to the remedy of mandamus (so at least until the district court can enter a new judgment in line with this court’s opinion, the district court’s prior ruling remains in effect; that the identity of three of the Internet speakers is compelled while two others’ anonymity remains protected). However, while coming to a conclusion the Ninth Circuit did articulate some guidelines for future courts’ analysis of the relationship between the First Amendment and compelled discovery in the context of a petition for a writ of mandamus. Sadly, and aside from the political/commercial speech distinction, the Ninth Circuit’s guidelines do not incorporate anything new or out of the ordinary and instead merely follow institutionalized general precepts governing commercial speech.

Background of the parties;

Quixtar is the successor to one of the largest private companies in the U.S. history, Amway. Originally Quixtar Inc., sued Signature Management TEAM, LLC (Signature), claiming that Signature instructed its employees to conduct an internet defamation campaign against Quixtar using anonymous postings and videos.

In pre-trial during the discovery process, Quixtar sought testimony from Benjamin Dickie, Signature’s Online Content Manager, regarding the identity anonymous Internet speakers behind five sources where the Internet speakers allegedly posted defamatory content about Quixtar. Dickie refused to testify citing his First Amendment rights. Quixtar requested the district court to compel the testimony and the district court applied the Cahill standard to come to the determination that the test for disclosure of identity of anonymous Internet speakers was met for three of the five sources and ordered Dickie to identify those Internet speakers.

The impetus for this petition for a writ of mandamus;

The anonymous Internet speakers who posted the content on the remaining two sources brought this petition as ‘Anonymous Online Speakers’ and petitioned the Ninth Circuit for a mandamus to vacate the district court’s order regarding the identity of Internet speakers who posted to three sources. Conversely, Quixtar cross-petitioned for a writ of mandamus directing the district court to order Dickie to testify regarding the identity of the remaining anonymous Internet speakers.

A more informative analysis of the In re: Anonymous Online Speakers v. United States District Court for the District of Nevada Reno case and the standard for maintaining anonymity while posting content online will be coming soon.

The issues raised and points of law under consideration in this Ninth Circuit opinion are applicable to a range of different specialist lawyers. But particularly and most importantly is this case’s handling of the standard for maintaining anonymity while posting content online (formerly the Cahill standard). This is critically important in many situations handled regularly by Internet law attorneys involved in Internet litigation. This opinion is also noteworthy to many other specialists, including:

• Those specializing as Internet Defamation Attorneys;
• Slander Attorneys;
• Lawyers regularly encountering § 230 of the Communications Decency Act (CDA).

Other resources available to interested persons;

The full opinion for this case

Two new cases on Internet Anonymity

Court makes it easier to unmask online posters of commercial speech



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