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Welcome to our May 2015 Newsletter! Please take the time to read the article and contact us should you have any questions or concerns.


Law Offices of Salar Atrizadeh

Can Posters Remain Anonymous in Defamation Claims?

Two cases in the recent decade have called into question the rights of anonymous posters of defamatory speech on websites. The First Amendment does not protect all speech, including, but not limited to, defamatory and hate speech. However, the Internet has created a forum where defamatory speech can be posted anonymously, leaving the question to the courts of when the identities of anonymous posters should be revealed. The cases that have established the principles for answering this question are John Doe No.1 v. Cahill, 884 A.2d 451 (2005) and Krinsky v. Doe 6,159 Cal. App.4th 1154 (2008).

What was the reasoning used in these cases?

The Supreme Court of Delaware heard John Doe No.1 v. Cahill regarding anonymous posts criticizing a politician. Any speech regarding public figures is given a different level of protection than defamatory speech against a private figure. In order for the plaintiff to succeed in its motion demanding the identity of the defendant, it must prove the claim of defamation would withstand a motion to dismiss for failure to state a claim. To do this, the plaintiff has to prove each element of the claim necessary to win on summary judgment as well as try to give the defendant notice as to which posts were being called into question and a chance to respond. In California, the elements to prove are that: (1) the publication was a statement of fact; (2) the statement was false; (3) the statement was unprivileged; (4) the statement caused injury or special damage; and (5) the defendant was at fault in publishing the statement which amounted to at least negligence. Therefore, the Supreme Court adopted a higher standard than the trial court, before compelling a third party to identify an anonymous poster. The court reasoned that this was in order to protect those making anonymous political speech. In this case, the court ruled in favor of the defendant and the case was reversed.

In Krinsky v. Doe, the appellate court also ruled that plaintiff had not stated a viable cause of action in order to overcome the anonymous poster's First Amendment right "to speak anonymously." In this case, the posts were made offending a corporate officer of a company and not a public figure. Albeit, the court still ruled that the subpoena to discover the poster's identity should have been denied because there were not sufficient facts to prove that the poster was making assertions of fact and not just venting his/her opinion.

What does this mean for businesses who host websites or who are trying to litigate anonymous defamation online?

These cases set a high standard for plaintiffs to meet in order to discover the identity of anonymous commentators. This means that companies who host websites that allow anonymous comments are less likely to be compelled by a court to disclose the identity of the poster as a third party in a defamation case. This also means that parties will have a difficult time bringing defamation suits against anonymous posters regardless of how much the posts may hurt a company or an individual's reputation.

For more information, you should consult with an attorney. At our law firm, we assist clients regarding online defamation and free speech rights in order to avoid legal complications.

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