Increasingly, anonymous bloggers are posting damaging and sometimes libelous comments directed against others on the Internet. However, identifying an anonymous blogger is not easy. Federal law requires an ISP to notify a blogger upon a demand for his identify. Courts typically become involved when an Internet Service Provider (ISP) files suit to ask relief from the demand or the blogger files a John Doe suit to maintain his anonymity.
Based on a conflict between First Amendment rights and allegations of defamation, courts inconsistently resolve the question of whether a company can learn an anonymous bloggers’ identity.
In Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), the district court created the “motion to dismiss standard”. The court held that before granting discovery to find the blogger’s identity, a plaintiff must: (1) identify the target with sufficient specificity to establish the court’s jurisdiction; (2) demonstrate prior efforts to locate the target; (3) demonstrate that it can withstand a motion to dismiss; and (4) explain what specific discovery it wants and why it will identify the target.
In Dendrite Intl’l, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct., App. Div. 2001), the court established a “summary judgment” standard that required: (1) notice to the target and an opportunity for the target to be heard; (2) fact specific pleadings; (3) a hearing to determine whether the plaintiff could survive a motion to dismiss and could set fort a prima facie claim with supporting evidence; and (4) assuming plaintiff survives the third hurdle, balancing the defendant’s First Amendment rights against the strength of plaintiff’s prima facie claim.
In Apple Computer, Inc. v. Doe 1, No. 1-04-CV-032178, 2005 WL 578641 (Cal. Super. Ct. 2005), the Superior Court ordered disclosure of the bloggers’ identities to protect against trade secret misappropriation. This decision was in spite of the defendants’ argument that they were journalists entitled to protect their sources. Keeping information secret was seen to outweigh journalistic privilege.
Therefore, before filing suit, a plaintiff should investigate the circumstances of the disclosure to identify a narrow group of individuals potentially responsible for the posting. And, before preparing pleadings, a company should distinguish why the speech does not deserve First Amendment protection.