Identity of Anonymous Wikipedia Editors Not Protected by First Amendment

In Faconnable USA Corporation v. John Does 1-10, 2011 WL 2015515 (D. Colo. May 24, 2011), the United States District Court for the District of Colorado rejected a ISP's motion to quash a subpoena issued to discover the identity of anonymous editors of Wikipedia.  Plaintiff alleges that the anonymous editors violated the Lanham Act and comitted trade libel and commercial disparaging by falsely posting that plaintiff is a support of Hezbollah, a Shiite Islamist militia and political party which has been designated as a terrorist organization.

With its Verified Complaint, Plaintiff Faconnable USA Corporation filed a Motion for Expedited Order Authorizing Discovery to permit it to conduct immediate discovery from third-party Internet service providers (ISPs) and website operators who may have information about the identity of the anonymous Defendants who edited Faconnable's Wikipedia entry to falsely associate the company with Hezbollah. The court granted the motion and Faconnable issued a subpoena to Skybeam, Inc. asking Skybeam to produce personally identifiable information about Skybeam's subscribers who are the alleged Defendants.  Skybeam filed a motion to modify the order permitting expedited discovery and for entry of a protective order.

The Supreme Court has repeatedly recognized the freedom of individuals to speak anonymously.  That right extends to anonymous speak on the Internet, but is not unlimited.  The degree of protection afforded to anonymous speech depends on the nature of the speech, whether it is political, commercial, or actionable.

In analyzing this issue with respect to Skybeam's motion, the Court recognized that there was some apparent "coalescence" of courts around applying a heightened standard to discovery designed to "unmask" anonymous online speakers, such as that initially articulated in Dendrite Int'l v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).  However, the Court rejected such a heightened standard, finding that "[n]either the Constitution, the Federal Rules of Civil Procedure, not any decision of the Supreme Court has imposed special discovery rules in cases implementing the First Amendment." Applying the traditional discovery standards set forth in Rule 26 of the Federal Rules of Civil Procedure with a particular sensitivity to the First Amendment implications of the request, the Court held that the burden placed on the anonymous speaker's exercise of free speech was content neutral as the subject subpoena was not "designed to suppress the express of unpopular views," but instead to allow an allegedly injured victim to seek relief against anonymous Internet posters for actionable speech. Accordingly, the Court denied the motion and ordered Skybeam to comply with the subpoena.

Comments

[Robert]

good decision in my opinion... definitely an interesting case, and not an easy one.

[Gregory Kohs]

I disagree that this is not an easy case, Robert. It's quite simple, and it's proceeding as it should. The attacks made by the IP editor on Wikipedia -- a site that advertises itself as "the sum of human knowledge" (not human "rumor" nor human "opinions") -- were malicious, and the victim deserves justice.

I wonder at what point will the irresponsible Wikimedia Foundation itself have its Section 230 shield pierced? Or, will Section 230 be revised by Congress? Certainly, there are a fair number of individuals who are not THAT famous, who have been victimized by Wikipedia maintaining a biography of them that is constantly vulnerable to harassment and defamation, 24 hours a day. At some point, a crafty legal team is going to express this harm as an invasion of the victim's privacy, and that's how (I hope) Section 230 will be shattered.