A recent case illustrates the problem of allowing a court to expose the identity of an anonymous online speaker without first requiring the plaintiff to demonstrate a prima facie or even bona fide case of defamation.
In late August, the California Superior Court issued a subpoena that compelled Google to disclose the identity of anonymous journalists in the TCI Journal case. In that case, a resort developer – Dr. Cem Kinay – (the “Plaintiff”) sought a subpoena to compel Google to disclose the names of the anonymous owners of the e-mail address for TCI Journal, a small, volunteer-run online newspaper that reports on government corruption in the Turks & Caicos Islands (the “TCI Journal”). The Plaintiff alleged that the TCI Journal posted defamatory statements which associated the Plaintiff with government corruption.
What makes the TCI Journal case troubling is that the Plaintiff was able to determine the identify of the anonymous operators of the TCI Journal without being required to demonstrate a prima facie or even bona fide case of defamation. In similar Canadian and American cases – including the infamous Cohen case (see: previous post) – plaintiffs have been required to demonstrate that their claim had some merit before a court would compel an online service provider to disclose the identity of an anonymous online speaker. In this case, the Plaintiff appears to have been required to do little more than file a court document and pay a small fee. Although the TCI Journal could have made a motion to quash the subpoena – this appears to have not occoured – likely because the TCI Journal couldn’t afford legal representation.
To make matters worse, Google declined to oppose the subpoena, as illustrated in the following extract from an email sent to the operators of the TGI Journal:
Google has received a civil subpoena for information related to your Google account …
To comply with the law, unless you provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at firstname.lastname@example.org by 5pm Pacific Time on September 16, 2009, Google will assume you do not have an objection to production of the requested information and may provide responsive documents on this date.
Unfortunately, Google is not in a position to provide you with legal advice.
If you have other questions regarding the subpoena, we encourage you to contact your attorney.
The TCI Journal case should concern online entities that depend on their anonymity to function yet lack the funds required to protect it. In many cases, exposing a critic’s identity might be sufficient to silence that critic. If the critic lacks the funds required to fight the plaintiff’s attempt to expose their identity – and if the law does not independently require the plaintiff to demonstrate that their defamation claim has some merit – plaintiffs might be permitted to achieve their purpose in the absence of any real case of defamation. This is especially problematic if the critic’s purpose is to further the public good.