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Breaking Anonymity on the Internet

In ZL Technologies, Inc v. Does, issued July 19, 2017, the California Court of Appeal in San Francisco explained the test for deciding when a plaintiff's need to identify the human beings behind internet usernames outweighs those users' First Amendment right to remain anonymous. The U.S. and California Supreme Courts have not addressed this issue, yet.

The First Amendment protects anonymity, because it encourages free and frank expression and debate, without fear of reprisals. However, the First Amendment does not protect false defamatory statements. Society receives no benefit from lies. Therefore, the threshold issue was whether or not ZL had made a sufficient showing that the statements were false, and not just opinions, and caused harm to ZL, to justify forcing Glassdoor to break its promise to its users, of anonymity. Every false statement is not subject to court intervention. In order to be defamatory, the statements must not only be false, but also must cause real harm.

The Court of Appeal also required that the anonymous users be given notice of the subpoena and the plaintiff's efforts to obtain their identities, and notice of the specific statements which the plaintiff claims are defamatory. The Court did not establish a fixed rule on how such notice to the anonymous defendants should be made. It acknowledged that in most cases, the website will have an email or ISP addresses for its users and will be in the best position to pass on the notice.

Where that is not possible, posting the notice on the same website, message board or chat room where the defamatory statements were first found, might be the only available notice. The Court noted that this would require the victim to re-publish and revive the defamatory statements, compounding the harm, and in many cases would be ineffective, since users move on and abandon websites, message boards and chat rooms so readily.

In this particular lawsuit, the anonymous users posted unflattering complaints about working conditions at ZL Technologies on Glassdoor, claiming that they were current and former employees at ZL. ZL sued the anonymous users for libel, alleging that the comments were false and were damaging ZL by depriving it of the best available employment candidates. ZL subpoenaed Glassdoor's records to find out the real names of the anonymous users, so that their real names could be added to the lawsuit and they could be properly served with the summons and complaint. The trial court refused to enforce the subpoena and dismissed the case, because ZL was unable to identify the anonymous users any other way. On appeal, the dismissal was reversed, and the trial court was instructed to enforce the subpoena.

Subpoenas are available to uncover the names of anonymous internet users who cause harm by publishing lies. Such subpoenas are not available where the offending statement is an opinion, They are also not available because they are insulting or demeaning. They must cause actual real harm to the victim. This does not require substantial economic injury or emotional distress so severe that it causes significant physical symptoms, but in the absence of such harm, it might be difficult to persuade a judge that the harm rises to the level of defamation, so that such subpoenas could be issued.

If you think that you have been seriously harmed by false statements on the internet and cannot identify the user publishing the statements, call us to discuss how to obtain the user's name.

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