By MARK PEARSON Follow @Journlaw

Courts have taken a range of approaches on whether they will order the ‘outing’ of the identity of an anonymous Internet user. The super-rich have gone to court in the UK and the US to try to find the identities of bloggers who have caused them grief from behind the shield of pseudonyms (as Forbes reported).

In May 2011, a Utah court ruled in favour of 25 John Does known as ‘Youth for Climate Truth’ who had set up a fake website and issued press releases claiming the powerful Koch Industries would stop funding climate change deniers. The group is owned by Charles and David Koch who sit in the list of America’s top 10 wealthiest people. They were angered by the spoof site and its announcement so went to court to find out the identity of the protesters. But Judge Dale Kimball dismissed their motion for disclosure on the grounds that it did not meet the strict tests required to reveal the pranksters’ identities.

However, the High Court in England ruled in favour of another billionaire, Louis Bacon, who was attempting to force Wikipedia, the Denver Post and WordPress to cough up the identities of bloggers who had allegedly defamed him using pseudonyms. In late 2010, it had also ordered the revelation of another of Bacon’s critics who had created a website www.bahamascitizen.com. It seemed likely the US-based Wikipedia would protect its correspondent’s anonymity until it received an order from a US court with jurisdiction over its activities.

Even in the US, authorities can move with considerable speed and secrecy to demand account details on suspects. In 2010 the editor of the ‘Home in Henderson’ blog, Jason Feingold, was ordered by the North Carolina Superior Court to turn over identifying information on six anonymous commenters on his blog post ‘Arrest Made in Elder Abuse Case’. The identities of ‘Beautiful Dreamer’, ‘Fatboy’ and others were ruled actionable and disclosure ordered despite First Amendment and state shield law protections. Five of them later settled the defamation action.

In mid-2011, a Colorado District Court magistrate judge Boyd N. Boland produced an excellent summary of US decisions on discovery of anonymous sources and pieced together the criteria US judges apply before ordering their identification. The tough US tests pre-dated the Internet and were shaped by Supreme Court decisions over five decades protecting ‘anonymous speech’ as a First Amendment right. The landmark case was Talley v. California in 1960 where the court ruled a city ordinance was void because it required all leaflets to contain the name and address of the person who prepared, distributed or sponsored it. Delivering the judgment, Justice Black declared an identification requirement would restrict free expression. “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,” he declared. “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”

In his 2011 decision, Judge Boland cited that case and explained that litigants seeking to ‘out’ an anonymous writer must:

– give notice of their action;

– identify the exact statements that constitute allegedly actionable speech;

– establish a prima facie (“at first sight”) case against the defendant with enough evidence for each basic element of the action;

– balance the defendant’s First Amendment right of anonymous free speech against the strength of the case;

– show the disclosure serves a substantial governmental interest;

– ensure it is narrowly tailored to serve that interest without unnecessarily interfering with First Amendment freedoms; and

– convince the court that the case could not proceed without disclosure of the identity.

Judge Boland was ruling on an attempt by high-end tailor and fashion retailer Faconnable to force an ISP to reveal the identities of John Does who had posted entries on its Wikipedia entry claiming the company was a supporter of the Lebanese Shiite Islamist militia and political party. It wanted to sue them for trade libel and commercial disparagement. The disclosure order is on hold waiting appeal.

In early 2011, federal prosecutors had convinced a federal judge in Virginia to order Twitter to release account information on Julian Assange and other Wikileaks leaders as part of a grand jury probe into alleged criminal action. As Cnet reported, the judge rejected constitutional free expression and privacy arguments by Twitter, the Electronic Frontier Foundation and the American Civil Liberties Union that the details remain confidential. But the whole process had been kept secret until the judge ‘unsealed’ documents revealing the earlier stages of the prosecution processes. Appeals were under way in what promised to be a long legal struggle. As Cnet explained, the judge issued a 2703(d) order, allowing authorities to access materials from an Internet provider or website host “relevant and material to an ongoing criminal investigation.” The wide-ranging order requested all ‘contact information’ including “connection records, or records of session times and durations,” and “records of user activity for any connections made to or from the account along with IP addresses and all records or correspondence related to the accounts.

The decision followed a series of similar orders that courts unmask anonymous bloggers, Tweeters and Facebook users in both criminal and civil actions. The New York Supreme Court had ordered Google to identify an anonymous blogger in a defamation ‘fishing expedition’ in 2009. The Citizen Media Law Project explained how the operator of the ‘Skanks in NYC’ blog was unmasked on the petition of fashion model Liskula Cohen who had been denigrated in five postings about her sexual behaviour and ability.

Even a British local government body – the South Tyneside Council – managed to get a Californian order forcing Twitter to reveal the identity of anonymous bloggers who had been making ‘false and defamatory’ allegations about its councillors so they could launch defamation action against him. It was a surprising decision, given the strong First Amendment protections in the US, particularly for criticism of political figures. London’s Telegraph claimed Twitter had relented and handed over the identifying details of the users behind the accounts named @fatcouncillor, @cllrdavidpotts, @councillorahmedkhan, @councillorkhan and @ahmedkhan01. While Twitter had been among the most defensive of its users’ identity protection, a spokesperson said the most the company could be expected to do was to give anonymous bloggers advance warning that their details would be released so they had the chance to launch an appeal.

Lawyers for Welsh footballer Ryan Giggs were not as successful in discovering the anonymous Tweeters who had revealed the celebrity sportsman’s name in breach of a UK injunction issued to protect his privacy. They had gone to London’s High Court and won an order that Twitter reveal the details, but the US microblogging company seemed to have disregarded it because they were not obliged to comply with court orders from outside their jurisdiction.

Despite recent successes in the US, the Citizen Media Law Project lists several cases where litigants failed to meet the tough test needed to discover the identity of anonymous online writers, including:

– In Pennsylvania, William McVicker lost in an attempt to subpoena Trib Total Media, publisher of the South Hills Record and YourSouthHills.com, for the identities behind seven screen names as part of an employment discrimination case.

– In New Jersey, the President of the Galaxy Towers Condominium Association, Slava Lerner, failed to obtain pre-action discovery from Michael Deluca, publisher of GalaxyFacts, a website forum used by Galaxy Towers condominium owners. Lerner sought the identities of commenters who ‘accused [him] of improprieties’.

– In New York, an Orange County grand jury subpoenaed The (Chester) Chronicle for information about a schools superintendent by two anonymous posters to its website. A judge quashed the subpoena in 2010 because the identities were not crucial to the matter at hand.

– A Missouri court denied a motion to compel The Springfield News-Leader to identify ‘bornandraisedhere’, a commenter on its website. It held the writer had First Amendment protections despite agreeing to the newspaper’s privacy policy before commenting on an upcoming civil case.

Even some traditional news organisations have tried to discover the identity of bloggers when defending their own interests. News America, publisher of the New York Post, sought a subpoena in California in 2005 to force Google to reveal the identity of a blogger who had breached its copyright by posting its entire Page Six column without advertisements, the Citizen Media Law Project reported.

UK courts draw on a decision made by the House of Lords almost two decades before mainstream use of the Internet. The 1973 case of Norwich Pharmacal v. Customs and Excise Commissioners centred on a company seeking the identity of those importing goods that infringed their patents. The customs commissioners were ordered to reveal the identity of the importers. As law firm Gillhams explains: “The House of Lords found that where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers.” In contrast to the US, disclosure becomes the starting point in Britain. The High Court of Justice applied the Norwich Pharmacal test in 2009 when it ordered Wikipedia to reveal the IP address of an anonymous party who had amended an article about a woman and her young child (‘G and G’) to include sensitive private information about them. The judge suppressed their names on confidentiality grounds because he believed the entries were part of a blackmail threat against the mother. Even though the owner of Wikipedia (Wikimedia) was based in Florida in the US, the court issued the disclosure order. Wikimedia complied, but insisted it was not legally bound to do so because it was in a different jurisdiction and had immunity under s. 230 of the US Communications Decency Act (1996) as a third party publishers of the comments of others.

However, disclosure is not automatic in the UK courts. In 2011, British woman Jane Clift failed in her attempt to get the High Court of Justice to order the editor of the Daily Mail’s website to reveal the identities of two anonymous commenters on an article about her. The newspaper and the website had run a sympathetic article about her winning a defamation action against the Slough Borough Council after they had published her name on a Violent Persons Register for merely reporting that a drunk had damaged a city flowerbed. However, when anonymous critical comments appeared at the base of the web article she tried to find their authors so she could sue them too. But Mrs Justice Sharp ruled that Clift had failed to meet the Norwich Pharmacal test. She said any libel action was unlikely to succeed because readers would not have taken the remarks seriously – they would have considered them mere ‘pub talk’. She gave greater weight to the privacy interests of the anonymous authors.

Canadian judges apply a different four-point test in deciding whether they will protect anonymous bloggers’ identities. Judges need to consider whether:

– the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the circumstances;

– the litigant has established a prima facie (‘at first sight’) case against the unknown alleged wrongdoer and is acting in good faith;

– the litigant has taken reasonable steps to identify the anonymous party and has been unable to do so; and

– the public interest in disclosure outweighs the interests of free expression and right to privacy of the anonymous authors.

The test was developed in late 2010 by Justice Jennifer Blishen of the Ontario Superior Court of Justice in a case stemming from comments made on a political message board Freedominion. Two ‘John Does’ – ‘conscience’ and ‘HR-101’ – described human rights activist and lawyer Richard Warman as a sexual deviate and a Nazi in several postings to the site’s 9000 users. Justice Blishen ordered the site owners to hand over identifying details on the John Does, including their email addresses, IP addresses and personal information submitted when they registered for the forum.

But the same test had a different result in a case with similarities to the South Tyneside Council matter, when the Ontario Superior Court of Justice in July 2011 refused to order the unmasking of local bloggers who had criticized the Aurora city mayor. The Canadian Civil Liberties Union intervened to help protect the bloggers on the grounds that a prima facie defamation case had not been established and their free expression rights would be compromised.

A so-called anonymous ‘poison-penner’ was not so fortunate in Western Australia, however. As The Age revealed, a blogger using the pseudonym ‘witch’ launched a series of attacks on a stockmarket forum about technology security company Datamotion Asia Pacific Ltd and its Perth-based chairman and managing director, Ronald Moir. A court ordered the forum host HotCopper to hand over the blogger’s details which could only be traced to an interstate escort service. But private investigation by the plaintiff’s law firm eventually found the true author of the postings who was then hit with a $30,000 defamation settlement.

Many such cases involved legitimate criticism of major corporations or wealthy public figures, and there are strong First Amendment arguments that a blogger’s anonymity should be protected. CyberSLAPP.org was set up in 2002 by several free expression organisations to highlight the use of court actions by powerful litigants to ‘out’ anonymous critics. As their site explains, the groups propose a legal standard for courts to follow in deciding whether to compel the identification of anonymous speakers. They demand suitable notice, an opportunity to be heard, and the right to have claims of wrongdoing detailed before requiring identification. The coalition also sets out ‘best practices’ for ISPs. They feature scores of case examples of their website for the information of defendants. Coalition members include the American Civil Liberties Union, the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and Public Citizen.

In some countries bloggers might face much more serious consequences if they operate under their true identities. ISPs and other hosts have been all too willing to hand over their details to litigants and governments. The most famous example was the case of Chinese journalist Shi Tao who used his Yahoo! email account to send information about censorship policies to a foreign source. Yahoo’s Hong Kong branch handed his details over to the Chinese government without even questioning their authority or warning its client. Shi Tao was jailed for 10 years in 2005 for ‘divulging state secrets’. Even India, with a better record of free expression, demands ISPs reveal anonymous users’ identities. As Reporters Without Borders revealed, an Indian high court ordered Google to release the true identity of blogger ‘Toxic Writer’ who had posted critical comments about construction company Gremach.

If there is a lesson in all this, it is that anonymity is never guaranteed and bloggers and social media users need to take legal advice to weigh up the risks before attempting to hide behind a nom de plume or nom de guerre online.

© Mark Pearson 2011

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.