Information Technology & Outsourcing February 2008 Updates

California's New Standard for Identifying Anonymous Internet Posters

Companies face the difficult issue of protecting themselves from cybersmears by anonymous Internet users. One of the most problematic issues is determining which standard must be met by a plaintiff to obtain the identity of an anonymous poster who has used the Internet to spread defamatory statements.

The Sixth Appellate District Court of Appeal in California recently weighed in on the different standards used to determine when a plaintiff can compel the disclosure of an anonymous Internet poster's identity, thereby adding to the complexity plaintiffs face. This decision can impact a company in two ways. First, it impacts when a company can obtain information regarding an anonymous poster who may be making defamatory statements regarding the company, or its executives. Second, while a commercial Internet service provider was at issue in this most recent case, private companies often find their own networks are used to post these type of comments. Companies should ensure compliance with the Court of Appeal's standards, particularly regarding notice, before identifying any user of its network in connection with a subpoena to identify an anonymous poster.

In Krinsky v. Doe 6, CV059796 (February 6, 2008), the Court of Appeal recognized the First Amendment protections afforded to Internet users, but recognized these protections are not unlimited. In this case, the defendant allegedly had posted a number of statements about a company and its executives that were deemed to be crude and derogatory. One of the executives sought to compel Yahoo! via a subpoena to disclose the identity of the poster. The defendant brought a motion to quash the subpoena, which was denied by the trial court.

The Court of Appeal examined the different standards imposed by other state and federal courts, and created its own standard. While it adopted at some level the concept that the poster must received notice of the subpoena (as required by the Dendrite line of cases Dendrite International, Inc. v. Doe, 775 A.2d 756, 761 (2001)), it seemed to indicate that a statement in a Web site's terms of service that disclosure will be made in response to a subpoena would be sufficient notice. The Court of Appeal also held that a plaintiff need only show prima facie evidence of a claim to support disclosure of an anonymous poster's identity, in contrast to the other states that require higher, summary...