Freedom of Anonymous Online Speech Has Potential Limits - Technologist
Technologist - The FindLaw Legal Technology Blog

Freedom of Anonymous Online Speech Has Potential Limits

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the Internet.

It is very easy to communicate freely and anonymously on the Internet. And some people believe that if they do not use their real names and easily identifiable information, they can basically say whatever they want online, without needing to worry about the impact that their Internet speech may have on others.

Is this true? Read on, because the answer is not simple.

Defamation Suits, Damages Are Possible

Yes, the right to speak anonymously is within the ambit of freedom of speech safeguarded by the First Amendment to our Constitution. And courts have held that this right has been extended to Internet speech. So, are we done with the analysis? Can people say anything online without concern for repercussions? No!

To the extent speech (including Internet speech) is false and causes harm to someone else, there is a potential cause of action for defamation and recoverable damages.

The tricky part for the victim is not only proving defamation/damages, but also ascertaining the identity of the actual defendant/defamer when the online speech at issue has been anonymous (usually presented under a pseudonym). Without the ability to "unmask" the actual author of the communication, there is no point in further trying to pursue legal action. Thus, can the speaker's true identity be unmasked? It depends.

Often, the victim of alleged online defamation files a lawsuit against a "John Doe" defendant. From that defamation legal action, the victim/plaintiff then issues a subpoena to a third-party Internet Service Provider (ISP) seeking the true identity of the Doe defendant to insert into the defamation lawsuit.

The ISP usually notifies the actual online communicator of the issuance of the subpoena. The communicator who was the author of the Internet speech then has the ability to file a motion to quash the subpoena, arguing that his right to speak anonymously online would be compromised by the ISP revealing his true identity. If a motion to quash is not timely filed, the ISP then might go ahead and provide the identifying information.

When a motion to quash is filed, the battle is joined. The Internet speaker argues in favor of his anonymous speech rights, and the victim/plaintiff asserts that she has been the victim of defamation and that she will not be able to seek legal redress without obtaining the identity of the Internet speaker.

What happens next? The court is called upon to balance these important and competing interests. But how?

'Unmasking' Doe Defendants

Courts have fashioned different tests, but the test set forth in Highfields Capital Mgmt. L.P. v. Doe, 385 F.Supp. 2nd 969 (N.D. Cal. 2005), is fairly representative. In that case (in which I successfully represented the Doe defendant), the court created a two-prong test:

  • First, it is incumbent on the plaintiff to submit competent evidence supporting each element necessary for the defamation claim (namely, falsity of the online statement and actual resulting harm).
  • Second, if the plaintiff meets that initial burden, then the court has to decide whether the magnitude of harm that would be suffered by the plaintiff in the event of an adverse ruling would outweigh that of the defendant.

Clearly then, online communicators still have significant protections for their anonymous speech. But equally clear from the foregoing is that people cannot say whatever they want on the Internet and think that they can walk away free from all consequences. If an Internet communication is false about someone else (whether a person, organization or company), and if that false communication causes true harm, and that harm outweighs the harm of the Internet speaker's identity being unmasked, then unmasking will take place and legal action will continue to be pursued against the speaker in his true identity -- and the damages eventually awarded to the victim could be significant.

Free speech, and even anonymous speech, are vitally important. But there are limits -- and freedom of speech protections do not guarantee freedom to speak anonymously to the serious harm of others.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Related Resources: