by Paul Alan Levy
In a decision issued today, the California Second District Court of Appeal has created an additional way for anonymous speakers, and for web operators who host anonymous comments, to protect the right to speak anonymously. Instead of invoking the First Amendment as courts in other states, and indeed other appellate courts in California have done, the Court of Appeal reversed an order compelling the identification of an anonymous speaker because the discovery order violated the state constitutional right of privacy.
The issue arose when Escape Media Group, in the course of fighting off a pair of lawsuits in which UMG Recordings charged that Escape’s Grooveshark music service infringes copyright, sent a subpoena to Digital Music News seeking to identify an anonymous commenter who posted a pair of comments to an article about Grooveshark; the commentere asserted that he was an Escape employee and charged that the reason why so many copyrighted recordings appear on Groooveshark without the consent of the copyright holders is that Escape creates financial incentives for employees to upload copyrighted recordings that are in high demand. Digital argued both that the First Amendment entitled the commenter to remain anonymous, and that the identifying data had been deleted in the ordinary course of business because Digital does not have any ongoing need for server logs.
The trial court enforced the subpoena after Escape provided an affidavit averring that the anonymous comments were false in several ways, and then allowed Escape to demand a forensic examination of Digital’s computer servers to determine whether the deleted data could be located in the unallocated blocks. Digital appealed, arguing both that the First Amendment barred the underlying discovery and that, in any event, a third party that has deleted data in the ordinary course of business before receiving a subpoena cannot be required to preserve its servers or open them up to forensic examination.
The Court of Appeal reversed in a unanimous opinion by Justice Victoria Gerrard Chaney, but not on either of these grounds. Instead, in light of the fact that, while the appeal was pending, the New York Appellate Division struck Escape’s DMCA immunity defense on the ground that the DMCA protects only against federal infringement claims, not state law claims for infringement of pre-1972 sound recordings, the court decided that the discovery was not relevant to the state court infringement action, however relevant it might have been had the subpoena been issued in the federal law infringement action.
The court went on the say, however, that even if the subpoena met the ordinary test of relevance, discovery to identify an anonymous speaker implicates the speaker’s right of privacy under the California constitution. Consequently, the court had to apply a multi-factor test that requires consideration of the extent to which the party has “a compelling need for discovery,” and whether that need is so strong as to “so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” In this regard, the court took into consideration not just Escape’s minimal need for discovery, but also the problem that, if the anonymous commenter really was an Escape employee, “exposure could endanger not only his or her privacy but also livelihood.” In this regard, the privacy approach might provide even stronger protection that the approach taken under the First Amendment by the Sixth District Court of Appeal in northern California, which held in Krinsky v. Doe that once a plaintiff shows that an anonymous comment is a false statement of fact that caused damage, no balancing of the interests of the interests is required as in the majority approach representing by the Dendrite line of analysis.
The Court closed with a paragraph that more judges might heed, whether they are weighing anonymity in a First Amendment or right of privacy context. Indeed, litigants might also entertain this thought before filing a lawsuit or serving a subpoena:
Visitor has done nothing more than provide commentary about an ongoing public dispute in a forum that could hardly be more obscure—the busy online comments section of a digital trade newspaper. Such commentary has become ubiquitous on the Internet and is widely perceived to carry no indicium of reliability and little weight. We will not lightly lend the subpoena power of the courts to prove, in essence, that Someone Is Wrong On The Internet.
