NY Judge: Google Must ID Anonymous Blogger

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New York Supreme Court Justice Debra A. James has ordered Google, Inc. to disclose the identity of an anonymous blogger whose two Web sites allegedly defame a Manhattan-based consumer lawyer.

As reported by the Wall St. Journal Law Blog (blogs.wsj.com), in a Stipulated Order in Fredrick Schulman v. Google, Inc. et al. (Case No. 155629/2013), Justice James ruled the plaintiff had demonstrated a potential cause of action against the creator of the sites fredrickschulmancrookedattorney.com and stopfredrickschulman.blogspot.com and was entitled to pre-action discovery identifying the blogger under CPLR sec. 3012(c).

Schulman alleges he has suffered harm to his reputation and pecuniary loss because of the "malicious" online campaign against him.  Google was ordered to notify the unnamed blogger and alert him/her that he/she may challenge the efforts to disclose his/her identity.  The court discontinued the plaintiff's action as to Google.

UPDATE: Mich. App. Ct. Delays Law School Unmasking of Anonymous Blogger

Thomas M. Cooley (Photo credit: Political Graveyard)

In Thomas M. Cooley Law School v. John Doe 1 et al. (Case No. 30742628), the Michigan Court of Appeals for the Fourth District this week reversed and remanded a trial judge's refusal to grant a protective order to an anonymous poster critical of the independent law school's placement statistics.

The ABA Journal Law News Now blog reported about the appellate court's 28-page decision that concluded the trial court wrongly failed to address why it denied blogger Rockstar05's request for a protective order against the law school's subpoena seeking the blogger's identity. The appeals court ruling also found the trial court wrongly decided that the alleged per se defamatory statements regarding criminality were not subject to First Amendment protection.

Rockstar05, a purported former Cooley student, criticized the school on his blog on the Calif.-based Weebly Internet Service Provider in July 2011 (see "TUOL" post 12/14/12). The unnamed poster allegedly characterized Cooley's job placement data as "criminal" and a "fraud," and allegedly branded the institution a "diploma mill" and one of the nation's three worst law schools, thereby dashing any hopes of ever receiving a school spirit award.

Weebly already has coughed up the information the law school was seeking, but a California judge presiding over the defamation case stayed the release of that data and the California proceedings pending the outcome of Rockstar05's interlocutory appeal in Michigan.  The appellate ruling this week returns the case to the Michigan trial court for a new ruling on whether the defendant blogger may retain his anonymity.

The defendant has pushed for Michigan to adopt a standard akin to one employed by a New Jersey Superior Court in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity.

Ill. Court Shields Anonymous Online Griper from Realty Co.

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Yelp! account holder Diana Z., Chicago, IL can retain her aura of mystery thanks to an Appellate Court of  Illinois ruling denying a realty management company's efforts to identify the unidentified critic blasting it for charging her rent collection late fees.

In Brompton Building, LLC v. Yelp! Inc. (2013 WL 416185), the management company, whom the anonymous Diana Z. mistakenly identified as managing the apartment building in which she lived, sought to identify its critic pursuant to Illinois Supreme Court Rule 224, which states that a "person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery."

As reported by prominent Chicago social media lawyer Evan Brown in his law firm's online newsletter, the Appellate Court affirmed a trial court's denial of the Rule 224 petition. The appellate court ruled that the plaintiff failed to show how it was damaged by the Yelp! poster, and noted the statements at issue were non-actionable opinions, rather than assertions of fact.

Teen's Libel Suit Against Blogger Dropped--Posters Retain Anonymity

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The Cleveland Plain Dealer reported this week a settlement under which a 16-year-old Steubenville (Ohio) high school football player and his parents dismissed with prejudice their defamation claim against a blogger and two anonymous posters who commented about the alleged sexual assault of a 16-year-old girl last August.

Two pseudonymous commenters on Alexandria Goddard's blog, prinniefied.com, alleged that the 16-year-old player should face consequences for his purported involvement in the attack, prompting the libel claim. Goddard fought efforts by the youth and his parents to obtain the identities of the anonymous posters.

Two of the youth's football teammates are facing rape charges in a trial next month, according to the Plain Dealer article. The plaintiff was not charged and claims he was not present when the alleged incident occurred.

Pursuant to the agreement reached by the parties, besides dropping the lawsuit, the youth posted an apology on prinniefied.com, expressing regret for tweeting vulgar remarks and a photo of the alleged victim. Goddard blogged that neither she nor the anonymous commenters professed to have evidence that the plaintiff was directly involved in the alleged assault.

Attorneys who represented Goddard and the unnamed posters pro bono, haled the outcome of the case as a victory for the First Amendment.

Continued Anonymity of Weebly Blogger May Be Wobbly

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The Michigan Court of Appeals for the Fourth District heard arguments this week in Thomas Cooley Law School v. John Doe (Case No. 307426) in which a former law student turned anonymous blogger asked for a reversal on First Amendment grounds of a trial judge's refusal to quash a subpoena seeking the blogger's identity.

According to a report by Reuters, the former Cooley student and other commenters in a blog post in July 2011, challenged the validity of employment statistics released by the Michigan-based independent law school, labeling the job-placement data as "criminal" and a "fraud." The school, claiming it was defamed by the blog item, subpoenaed California-based Internet Service Provider Weebly for information identifying the blogger.

The blog author asked a Michigan court to quash the subpoena, but the trial judge ruled the use of the words "criminal" and "fraud" was not protected speech under the First Amendment and held that Cooley would not have to meet the elevated burden of proof of actual malice to sustain its defamation claim against the blogger.

In the interim, Weebly coughed up the requested information to Cooley, purportedly consistent with its terms of service with "John Doe," and the law school identified the blogger in a court filing. The California judge, however, stayed the proceedings in the California defamation case pending the outcome of the blogger's interlocutory appeal in Michigan, according to the Reuters article.

The blogger's attorney argued before the Michigan appellate court that in determining the proper rule for disclosure of an anonymous blogger's identity, the state should adopt a developing consensus standard, similar to what a New Jersey court articulated in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity.

Cooley counters that Michigan law does not require evidence of the likelihood of success of its claims on the merits before allowing it to obtain discovery. The former Cooley student-turned-defendant is still getting a legal education, but not the one he bargained for.

Idaho Judge Orders Daily to Identify Anonymous Poster

(Photo credit: mMathab)Idaho First Judicial District Court Judge John P. Luster has ordered the Spokesman-Review to identify the anonymous blogger whose post offended Kootenai County Republican Party Chair Tina Jacobsen, the Spokesman-Review reports.

The pseudonymous almostinnocentbystander commented online under a photo of Jacobsen, questioning whether a purportedly missing $10,000 from the County's Central Committee was "stuffed inside Tina's blouse." The post was removed less than three hours after it first appeared.

Judge Luster rejected the daily's free speech argument in denying the paper's motion to quash the subpoena seeking identifying information about the unidentified blogger, noting that the First Amendment does not protect defamatory speech. Idaho lacks a shield law, but Judge Luster said such a statute was irrelevant because the editorial staffer overseeing the Spokesman-Review's online blog was performing as an administrator, rather than as a reporter, when he removed the offending comment.

Editor Gary Graham said the daily is weighing an appeal of Judge Luster's ruling, according to the
Spokesman-Review article.

Fed Judge to ISPs: ID 'Bareback Street Gang' Purloiners

Meet John Doe (Photo credit: Wikipedia)In Raw Films Ltd. v. John Does 1-15 (Docket No. 2:11-cv-07248-MAM), United States District Court for the Eastern District of Pennsylvania Judge Mary A. McLaughlin this week ordered Internet service providers to provide IP addresses and other information identifying subscribers who allegedly infringed on the copyright of an adult film through a file-sharing Website.

The Legal Intelligencer reports that in her 21-page opinion, Judge McLaughlin said: "A Doe defendant who has allegedly used the Internet to unlawfully download and disseminate copyrighted material does not have a significant expectation of privacy." The allegedly infringed work, a 2006 Czech-language film entitled Bareback Street Gang, is owned by the plaintiff, British adult film Website Raw Films Ltd.

Judge McLaughlin denied the unidentified defendants' motion to quash the plaintiff's subpoena, citing a five-pronged test to strike a balance between online users' First Amendment right to anonymity and intellectual property rights. The factors include: (1) a prima facie case of infringement; (2) the specificity of information sought from the ISP; (3) no alternative means to obtain the information; (4) a vital need for the information to support an infringement claim; and (5) the objecting party's expectation of privacy.

The plaintiff alleged the defendants employed the peer-to-peer BizTorrent protocols to upload, reproduce and distribute the adult film.

UPDATE: Ind. Appeals Court Asks Trial Judge to Review Order Unmasking Anonymous Blogger

Image via WikipediaThe Indiana Court of Appeals last week ordered Marion County Superior Court Judge S.K. Reid to review her ruling last March to compel the Indianapolis Star to identify an online anonymous poster whose comments are part of an ongoing defamation suit (see "TUOL" post 3/4/11).

The Indianapolis Business Journal reported that to preserve the proper balance between First Amendment-protected anonymous speech and unprotected defamatory speech,  the appellate court ordered Judge Reid to apply the test articulated by a New Jersey appellate court in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity. Adapting the Dendrite standard to comply with Indiana law, the Appeals Court is requiring supporting evidence only for the elements of  of the prima facie case that are not dependent on the identity of the poster.

In her initial ruling, Judge Reid said Indiana's shield law [Ind. Code sec. 34-46 1,2] did not protect media defendants against having to divulge the identity of an anonymous blogger who is a potential defendant in a defamation suit. The Star was the lone media outlet among  the Indianapolis Business Journal and WTRV-TV Channel 6 that refused to comply with Judge Reid's ruling to identify individuals who posted comments on the media entity's Website.

The Indiana appellate court said a crucial question in the case is whether the pseudonymous commenter DownWithTheColts is the source of any information given to a news outlet under the Hoosier State's shield law. The appellate panel found DownWithTheColts' comments libelous, but noted that the plaintiff in the underlying defamation suit, Jeffrey M. Miller, former CEO of Junior Achievement of Central Indiana, had yet to prove that the offending statement was false and published with actual malice.

In the appellate decision, Indiana Court of Appeals Judge Nancy H. Vaidik wrote: “While we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters.”

The Appeals Court remanded the case to Judge Reid to determine under the jerry-rigged Dendrite test whether Miller meets the requirements to unveil DownWithTheColts.

Calif. Federal Judge Protects Anonymity of Blogger Against Spirtual Group Subpoena

Image via WikipediaIn  her 16-page opinion in Art of Living Foundation v. Does 1-10 (Case No. 10-cv-05022), United States District Judge for the Northern District of California Lucy H. Koh last week ruled against a spiritual organization that had subpoenaed Google and Automattic, Inc. to obtain the identity of Skywalker, who publishes two blogs critical of the group.

The Art of Living Foundation ("ALF") sued unnamed defendants in November 2010 for defamation, trade libel, misappropriation of trade secrets and copyright infringement based on two blogs' publication of ALF's "Breath Water Sound Manual" and teaching methods. The blogs, "Leaving the Art of Living" and "Beyond the Art of Living" are written by an anonymous poster under the pseudonym Skywalker, according to the Reporters Committee for Freedom of the Press Web site (www.rcfp.org).

ALF celebrates the spiritual lessons of "His Holiness Ravi Shankar" that emphasize yoga, meditation and breathing relaxation skills. Skywalker and his supporters argue the plaintiff is attempting to use its copyright as a tool to suppress their free speech rights. The defendants challenged ALF's subpoenas of the Internet Service Providers without revealing their identities.

To the degree anonymity encourages an individual to speak freely, Judge Koh wrote, compelling the disclosure of Skywalker's name "diminishes the free exchange of ideas guaranteed by the Constitution." Judge Koh indicated in her ruling that as the lawsuit proceeds to the discovery stage, the issue of anonymity may be revisited and the defendant blogger may not be able to continue to conceal his identity.

But at least for now, as Obi-Wan Kenobi used to say: "Use the courts, young Skywalker, use the courts..."

Sandal's Resort to Pre-Litigation Discovery to ID Anonymous E=mailer Snubbed by Judge

Image via WikipediaIn Sandals Resorts International Ltd. v. Google (Case No.100628/10), a unanimous New York Appellate Division, First Department panel this week refused a potential defamation plaintiff's pre-litigation request for information identifying the pseudonymous sender of the allegedly libelous email.

The New York Law Journal reports that the appellate court's decision, written by Justice David B. Saxe, said taken as a whole, the allegedly defamatory online post constituted opinion and was not actionable. The offending email criticized the resort operator's treatment of Jamaicans, alleging they were hired only for low-paying menial jobs, but the Court refused to compel Google to produce to Sandals information concerning email account asjft3092@gmail.com.

The Court cautioned against companies employing subpoenas to "enlist the help of (ISPs) via court orders to silence their online critics (which) threatens to stifle the free exchange of ideas."  Judge Saxe said Sandals failed to show it was harmed by the email in question. 

"To the extent the email suggests that Sandals' hiring of native Jamaicans is limited to menial and low-paying jobs, Judge Saxe wrote, "a reasonable reader would understand that as an allegation to be investigated, rather than as a fact."

Texas High Court Ruling Lets Anonymous Bloggers Stay Anonymous

Image via WikipediaIn In re Does, __S.W.3d __ , 2011 WL 1447544 (Texas 2011), the Lone Star State's High Court quashed subpoenas issued to Google to unmask two anonymous bloggers facing claims of defamation, invasion of privacy and copyright infringement.

Pursuant to Rule 202.1 of the Texas Rules of Civil Procedure, an individual may petition the court for an order authorizing a deposition: "(a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit or (b) to investigate a potential claim or suit." In this instance, the Court agreed with the anonymous bloggers who challenged the subpoenas on the basis that the plaintiff failed to demonstrate the need for pre-suit discovery by showing that justice in an anticipated suit would be delayed or denied if depositions were not allowed and that the benefits of permitting depositions to investigate possible claims would outweigh the burden or expense of conducting the discovery.

Unlike many of the cases on which "TUOL" has reported in which courts have quashed subpoenas seeking the identity of anonymous bloggers, the Texas Supreme Court did not look for support to the First Amendment argument that the plaintiff's right to pursue a judicial remedy is subordinate to blogger's free speech right to speak anonymously.

Kudos to Evan Brown, whose always informative Internet Cases blog zeroed in on this interesting decision.

Miller Time: Judge Orders Indy Papers to ID Anonymous Posters

Image via WikipediaIndiana's shield law [Ind. Code sec. 34-46-1,2] does not protect newspapers from having to disclose information to enable a defamation plaintiff to identify anonymous bloggers as potential defendants, Marion County Superior Court Judge S.K. Reid has ruled, according to an article in the online edition of The Indianapolis Star (www.IndyStar.com).

Both the Star and the Indianapolis Business Journal must turn over data, such as Internet protocol addresses, to former long-time Junior Achievement ("JA") head Jeffrey Miller and his spouse, who are suing current JA executive Jennifer Burk, Central Indiana Community Foundation ("CICF") President Brian Payne, and their respective organizations for defamation. Miller subpoenaed the two newspapers, along with WRTV Channel 6, to disclose the identities of anonymous commenters, whose posts, the plaintiffs claim, defamed them.

Among the anonymous comments that the plaintiffs claim are actionable include an accusation that Miller "most likely [committed] a criminal act," that he is "the most greedy man I've ever known," and that "somebody needs to call the state's attorney general and investigate him [Miller]." 

Judge Reid is expected to rule on the subpoena against the television station next week.

UPDATE: Judge No Longer 'Suits' Plain Dealer

Image via WikipediaCuyahoga County Common Pleas Judge Shirley Strickland Saffold and her daughter have ended their invasion of privacy suit against Advance Internet, an affiliate of the Cleveland Plain Dealer, over the publisher's Internet "outing" of pseudonymous comments by Saffold's daughter from the judge's computer regarding an ongoing murder trial. (See "TUOL" posts 4/8/10 & 3/26/10).

Associated Press reports that the judge reached an undisclosed financial settlement of a $50 million suit filed after the publication identified anonymous comments posted by lawmiss. Several of the comments traced to Judge Saffold's computer concerned Anthony Sowell, who is accused of the serial killing of 11 women.The resolution purportedly involves a charitable donation made by Advance on the judge's behalf.

See Jane(sville) Run: Daily Curbs Comments on Online Edition

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Wisconsin daily The Janesville Gazette, which is owned by Bliss Communications, Inc., is anything but extremely happy about the tenor of  readers' comments following news stories in the Gazette's online edition.


The Gazette began soliciting comments from online readers three years ago, and by its own estimate, presently attracts four million pageviews monthly and receives roughly 10,000 comments a month. But, as the newspaper management laments, "The nastiness...is too much."

Consequently, The Janesville Gazette has decided to ban online comments from readers concerning stories involving courts, crimes, accidents, race, or sex.  The editor pledged to continue to monitor readers' comments and invited readers to submit old-fashioned letters-to-the-editor to the print version or to call the publication's "SoundOff" line.

Maine Dailies: 'No Anonymous Posts Heah'

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Maine Today Media, Inc. dailies The Portland Press Herald, Kennebec Journal and Waterville Morning Standard have shuttered the comments section of their online editions.


Publisher Richard Connor attributed the move to numerous "hurtful and vulgar" anonymous postings following articles that appeared on PressHerald.com, the online edition of the daily newspaper. He left open the possibility of reinstating the comments section provided a way can be found effectively to hold posters accountable for their remarks.

Actor Asks Court: Who Made 'Crabs' Tweet?

Image via CrunchBaseBroadway singer/dancer and skating star Marty Thomas has asked a New York judge to order microblogger powerhouse Twitter to identify the creator of @bwayanonymous, the now inactive account that viciously tweeted Thomas contracted "crabs" from a fellow cast member of the play Avenue Q.

Thomas, who denies ever suffering from the sexually transmitted parasitic insects, claims he was defamed personally and as a professional actor by the unnamed Tweeter, who purportedly had 100 followers, and Martin is itching to know the blogger's true identity. The former star of Wicked and Xanadu and one-time  Broadway "Hottie of the Month" as voted by gaylifenyc.org,  has been fodder for the tabloids since word of the crabs accusation and his lawsuit leaked out.

What a lousy thing to do.

Supervisor Moves Forward Against Anonymous Bloggers

Image via WikipediaKudos to www.SuffolkMediaLaw.com newsletter for flagging a Pittsburgh Post-Gazette story last week involving Forward Township Supervisor Thomas DeRosa's successful pursuit of the identities of six anonymous bloggers whom he alleges defamed him on the online bulletin board, www.elizabethboro.com.

Court of Common Pleas Judge R. Stanton Wettick, Jr. ordered  information about the posters be turned over to the township supervisor, who claimed in a lawsuit filed last November that the anonymous comments accusing him of corruption impugned his reputation. The American Civil Liberties Union, which interceded on the online bulletin board's behalf, released the six bloggers' IP (Internet Protocol) addresses to DeRosa's counsel, which will enable the supervisor to petition the posters' respective Internet Service Providers to release the names.

The ACLU does not plan to appeal Judge Wettick's ruling.

High Court Aids Irish Red Cross in Unnamed Blogger Pursuit

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Ireland High Court Justice Brian McGovern has allowed the Irish Red Cross to add monolithic search engine Google, Inc. as a defendant in a legal action seeking to track down an anonymous blogger.

According to an account on the BreakingNews.ie Website, the High Court ordered UPC Communications, an Internet services provider, to disclose the identity of the unnamed blogger whom the Irish Red Cross claims has "willfully distorted and misconstrued" internal information about the organization that has hindered its fund-raising efforts.

The Irish Red Cross has since dropped its litigation against UPC and directed its attention toward Google, which the High Court  agreed has facilitated the critical blog. Google is a major donor to the International Red Cross, which should make matters interesting.

NC Judge Rules Daily's Commenter's Identity May Be Protected

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Gaston County (N.C.) Superior Court Judge Calvin Murphy has ruled that the Freedom Communications, Inc.-owned Gaston Gazette (www.gastongazette.com) does not have to reveal the identity of an anonymous commenter on an online article concerning a murder suspect to the suspect's attorney, according to The Associated Press.

Citing the qualified privilege afforded the Gazette by the First Amendment and North Carolina's shield law [N.C. Gen. Stat. sec. 8-53.11], Judge Murphy held that counsel for murder defendant Michael Mead failed to show that the information he sought was unavailable elsewhere or was vital to Mead's defense.  Mead is accused of fatally shooting his fiancee in 2008 and allegedly burning her home to conceal the crime.

According to the Gazette's attorney, the anonymous posting at issue allegedly concerns a lie detector test administered to the defendant.

Sun Chronicle Charges Bloggers to Comment on Online Edition Articles

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Anonymous bloggers who want to add their two-cents to articles appearing in the online edition of the Attleboro (Mass.) Sun Chronicle must now follow two steps: 1) shed their anonymity & 2) cough up 99 cents to add their two cents.

Editor & Publisher reports that the Sun Chronicle, like its neighboring newspapers, The Foxboro Reporter and the Taunton Silver City Bulletin, now requires would-be commenters  to register their name, address and phone number with the paper, along with a valid credit card number, and to pay 99 cents for the chance to comment on online news stories.

The Sun Chronicle is not looking to generate revenue to overcome shrinking advertising and lost circulation, as the daily's publisher concedes much of the 99 cent fee will be absorbed by the cost of verifying credit card numbers.  Rather, the paper hopes to elevate the level of public discourse concerning the news of the day and to deter obnoxious visitors to its website who spew vulgar and inflammatory remarks while hiding behind a pseudonym.  Newspapers around the nation are grappling with this issue, as reflected by The Buffalo News, which now requires its article posters to complete a registration form including their name, address, email and phone number (see "TUOL" post 6/21/10).

"TUOL" believes the same strict adherence to publication guidelines followed by the paper in publishing or rejecting "snail mail" letters to the editor can be applied to online comments without compromising the First Amendment free speech right recognized by the Supreme Court to protect one's identity while commenting on issues of public concern.  Charging readers to post comments will discourage citizen participation and public dialogue. Moreover, the Sun Chronicle may regret its policy if security is compromised and a hacker gains access to the credit card numbers of the posters.

Stop whining and be thankful you have readers energized enough to weigh in on local and national news issues.

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