Unmasking the anonymous online critic – first, there is the matter of jurisdiction
On Friday, the Supreme Court of Texas issued a 5-4 decision holding a plaintiff needs to establish jurisdiction over an anonymous blogger before a court will allow pre-suit discovery that would likely unmask the blogger’s identity. Both the majority and dissenting opinions in In re John Doe a/k/a The Trooper are available here. It will certainly complicate the process of suing anonymous online defamers.
An anonymous blogger who went by “the Trooper” went after Reynolds & Reynolds Co. and its chairman. As we often recommend, the the company sought a pre-suit deposition from Google to try and identify the blogger. The application was filed in Harris County, where the chairman resided.
In Texas, Rule 202 allows for a presuit deposition to determine whether you want to investigate possible claims. It is cheaper and more efficient than filing a lawsuit. The application to do this must be filed in the “proper court.” You have to serve the petition on the company you want the discovery from (in this case Google) and the party who is the subject of the possible suit (in this case the Trooper). The company did just that. Google was unopposed. The Trooper fought the discovery on a John Doe basis and argued he was not subject to jurisdiction in Texas and therefore the request was not filed in the “proper court.”
Jurisdiction means the subject of the suit must have some connection to state where the lawsuit has been filed. For example, if you’ve never been to North Dakota, it would be a violation of your due process rights to be dragged into a lawsuit there. The blogger argued he has no connection to Texas other than the fact his blog is viewable in Texas.
The trial court was going to allow the discovery, but the Texas Supreme Court reversed. The majority wrote:
To allow discovery of a potential claim against a defendant over which the court would not have personal jurisdiction denies him the protection Texas procedure would otherwise afford. . . . [A] defendant who files a special appearance in a suit is entitled to have the issue of personal jurisdiction heard and decided before any other matter. . . . To allow witnesses in a potential suit to be deposed more extensively than would be permitted if the suit were actually filed would circumvent the protections. . .”
The court continued:
The Trooper cannot ignore this Rule 202 proceeding without losing his claimed First Amendment right to anonymity. By ordering discovery from Google, the court has adjudicated that claim. He has thus been forced to litigate the merits of an important issue before a court that has not been shown to have personal jurisdiction over him.
The problem with the ruling is that it will make it very difficult to unmask people online when you do not know their identity. If the anonymous blogger does not have to at least reveal their state of residence, where is a defamation victim to go? Four justices of the all-Republican Supreme Court dissented because “the Court requires a premature and impossible showing, in the process allowing an alleged tortfeasor to hide behind his anonymity regardless of whether the First Amendment allows it.”
The dissent explained:
In today’s case, involving the permissible scope of pre-suit discovery in Texas, the Court holds that the applicable procedural rule requires that personal jurisdiction be established over an anticipated defendant—even when that defendant’s identity is withheld—before such discovery may be granted. And it does so despite the fact that it would be impossible for a court to make the required minimum-contacts determination with respect to a potential party who refuses to reveal the jurisdictional facts (such as identity and domicile) that form the basis for that decision. This effectively abolishes a cause of action for defamation against a person who claims anonymity, particularly when the defamation occurs online.
In the context of an actual lawsuit, as opposed to a petition for pre-suit discovery, a defendant who claims they are not subject to jurisdiction is still subject to the discovery process. The plaintiff can send discovery forcing the defendant to identify all of the defendant’s contacts with Texas generally and with regard to the specific incident. Yet, in this case, it appears the anonymous blogger simply provided an affidavit that he had no contacts with Texas and there was no opportunity to dig further. The dissent recognized this conundrum.
[A] court cannot conduct a minimum-contacts analysis while wearing a blindfold; when a party chooses to remain anonymous, a court is powerless to evaluate his connection to the forum state. Several federal district courts have noted as much, in the context of copyright infringement cases, when denying motions to quash subpoenas issued to Internet service providers to ascertain the identity of anonymous defendants.
My two cents
From just reading the opinions, it is hard to tell how much information, if any, the anonymous poster provided other than a statement that he did not have any connection with Texas. It seems to me there are sufficient safeguards in place that require at least some connection with the State before the discovery would be allowed — the victim of the defamation was in Texas which, in some circumstances, can be enough to establish jurisdiction for the actual lawsuit. As the dissent points out, there are already tests in place to make sure the plaintiff has a valid complaint before the courts will allow discovery about an anonymous speaker.
Without some relief, what is the victim to do? Where does he go to get the information he needs? Or, does he have to file a suit and follow the more formal and expensive process? The rules do not allow lawyers to file suits unless we have done a good faith investigation of the facts and law. Hence, the reason for presuit discovery.
Alas, all is not necessarily lost. As pointed out by Strasburger’s Debra L. Innocenti, victims can still use out-of-court cyber-sleuths to help identify the defamer. We are staunch defenders of the First Amendment, but we have been around long enough to know there is abuse of the ease with which someone can superficially damage people anonymously on the Internet, whether it be defamation, a competitor or a jilted ex. The court has now taken away a standard tactic that helps people get redress when warranted.