United States: Anonymous Speech, Twitter and Defamation – Susan Brenner

21 03 2015

SeattleCourthouseCMYKThis post examines an issue that arose in the case of Music Group Macao Commercial Offshore Limited, et al. v. John Does, Defendant [sic], 2015 WL 930249 (U.S. District Court for the Northern District of California) which the judge described as “primarily” one for defamation, with “attendant claims”

for copyright infringement, unfair competition, and breach of contract. . . . The plaintiffs, whom the court will collectively call `Music Group,’ filed this case against John Doe defendants in the United States District Court for the Western District of Washington. . . . Music Group alleges in sum that the defendants have used anonymous accounts on the Internet service Twitter — under the account names @ FakeUli and @ NotUliBehringer — to `publish disparaging remarks about’ Music Group, its employees, and its CEO, Uli Behringer. . . .

According to Music Group, the Doe defendants have used these accounts to make `malicious, defamatory statements, which the [defendants] knew to be untrue’; this includes claiming that Music Group `designs its products to break in 3–6 months,’ that Music Group `encourages domestic violence and misogyny,’ and that the company’s CEO, Mr. Behringer, `engages with prostitutes.’ . . .

The judge goes on to explain that because the

relevant Twitter accounts are anonymous, Music Group has not been able to serve process on the defendants. Music Group has thus subpoenaed Twitter (who is not a party to this suit) to reveal the identities of the @ FakeUli and @ NotUliBehringer users so that it can serve the complaint on them. More precisely, Music Group’s subpoena would have Twitter produce `the name, address, email address and any proxy address’ of the accounts’ owners. . . .

The Washington district court has already granted Music Group expedited discovery to determine the identities of the Doe defendants. . . . The Washington court held that Music Group had shown `good cause’ for the requested discovery. . . . Given that order, Music Group subpoenaed Twitter for the identifying information. . . . So far, Twitter has not produced information in response. `Moreover,’ according to Music Group, `although the Court in [Washington] has issued the order for early discovery, Twitter [which is headquartered in San Francisco] would not agree to have the Court in [Washington] decide’ a motion to compel compliance with the subpoenas. . . .

She went on to note that Music Group then filed

this miscellaneous proceeding, asking this court to enforce the subpoenas. . . . Twitter `takes no position on the merits’ of Music Group’s motion. . . . Twitter states only that this court must make the necessary legal analysis `to ensure that the appropriate 1st Amendment standard is met and that the [Doe defendants’] right to anonymous free speech is protected.’ . . . Twitter also says that, if the court rules in Music Group’s favor, it will respond to the subpoenas. . . .

The judge began her analysis of the issue in the case, explaining that

`[i]t is well established that the 1st Amendment protects the right to anonymous speech.’ Art of Living Foundation v. Does 1–10, No. 10–5022, 2011 WL 5444622 (U.S. District Court for the Northern District of California 2011) (citing McIntyrev. Ohio Elections Commission, 514 U.S. 334 (1995)). `However, the right to anonymity is not absolute.’ Art of Living Foundation v. Does, supra. `Where anonymous speech is alleged to be unlawful, the speaker’sright to remain anonymous may give way to a plaintiff’s need to discover the speaker’s identity in order to pursue its claim.’ Art of Living Foundation v. Does, supra.

In In re Anonymous Online Speakers, 661 F.3d 1168 (U.S. Court of Appeals for the 9th Circuit 2011), the Ninth Circuit reviewed the developing tests in the area of anonymous online speech. Of the various approaches that Anonymous Online Speakers discussed, the parties urge the court to use the test enunciated in Highfields Capital Management, L.P. v. Doe, 385 F.Supp.2d 969 (U.S. District Court for the Northern District of California 2005). `In choosing the proper standard to apply, the district court should focus on the ‘nature’ of the [defendant’s] speech. . . .’ Art of Living Foundation v. Does, supra (citing In re Anonymous Online Speakers (`[T]he nature of the speech should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes’). . . .

She agreed with the parties that the Highfields Capital Management, L.P. v. Doe, supra, standard

is the correct standard for this case. The challenged speech here consists mainly of flatly derogatory statements about Music Group’s CEO, and, apparently to a lesser degree, some criticism of the company’s products that likely constitutes legitimate commercial criticism. The 9th Circuit has indicated that the Highfields test is one of middling rigor, appropriate where, as here, the challenged speech falls somewhere beneath the most protected realm of `political, religious, or literary’ discourse; is, in significant part, `commercial speech’ that enjoy [sic] `lesser’ protection; but may be more safeguarded than pure `fighting words and obscenity,’ which is `not protected by the 1st Amendment at all.’ See Anonymous Online Speakers supra; Art of Living Foundation v. Does, supra.

Under Highfields, a party seeking to discover the identity of an anonymous speaker must first `persuade the court that there is a real evidentiary basis for believing that the defendant has engaged in wrongful conduct that has caused real harm to the interests of the plaintiff.’ Highfields Capital Management, L.P. v. Doe, supra. If the plaintiff makes this showing, the court must then `assess and compare the magnitude of the harms that would be caused to the [plaintiffs’ and defendants’] competing interests’ by ordering that the defendant’s identity be disclosed. Highfields Capital Management, L.P. v. Doe, supra. If such an assessment reveals that disclosing the defendant’s identity `would cause relatively little harm to the defendant’s 1st Amendment and privacy rights,’ but is `necessary to enable [the] plaintiff to protect against or remedy serious wrongs,’ then the court should allow the disclosure. Highfields Capital Management, L.P. v. Doe, supra.

Next, the judge considered Music Group’s motion to “transfer this subpoena-enforcement proceeding back to the Western District of Washington, the court that is hosting the underlying litigation and which issued the subpoenas in question”.  Music Group Macao v. John Does, supra.  She pointed out that, under Rule45(d)(2)(B)(i) of the Federal Rules of Civil Procedure, Music Group Macao’s “initial motion to compel Twitter to comply with the subpoenas is properly before this court” because it is the “`district where compliance [with the subpoenas] is required.’” Music Group Macao v. John Does, supra.  She went on to explain that

`[w]hen the court where compliance is required did not issue the subpoena,’ as is the case here, `it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances’ warranting the transfer. Rule 45(f). `The proponent of transferring the motion to the issuing court bears the burden of showing “exceptional circumstances.”’ W. Schwarzer et al., California Practice Guide: Federal Civil Procedure Before Trial ¶ 11:2290.1 (Rutter Group 2014). . . . `The prime concern’ in deciding Rule 45(f) transfer motions `should be avoiding burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions.’ Rule 45(f) advisory committee notes to 2013 amendments.

The judge then found that “no `exceptional circumstances’ justify sending this motion back” to the Western District of Washington, “largely for the reasons that Twitter sets forth in opposing the transfer.” .

Next, the judge undertook the Highfields Capital Management analysis of whether the plaintiff’s claims against the defendant(s) “rest on a `real evidentiary basis’”.  Music Group Macao v. John Does, supra.  The judge explained that a prima facie defamation claim under Washington state law

requires a false statement that was not privileged, fault, and damage. See Mohr v. Grant, 108 P.3d 768 (Washington Supreme Court 2005). A statement is defamatory if it tends to harm the reputation of another by lowering him in the community’s estimation or deterring third persons from associating with him. Right–Price Recreation, LLC v. Connells Prairie Cmty. College, 46 P.3d 789 (Washington Supreme Court 2002). Damages need not be proven when a statement is defamatory per se. E.g., Valdez–Zontek v. Eastman Sch. Dist., 225 P.3d 339 (Court of Appeals of Washington 2010). Defamation per se exists where a statement alleges that the plaintiff: (1) committed a serious crime; (2) has a loathsome disease; (3) is unchaste; or (4) conducted himself in a manner incompatible with his business, trade, profession, or office. Davis v. Fred’s Appliance, Inc., 287 P.2d 51 (Washington Court of Appeals 2012).

The judge found that the Music Group had not shown a real evidentiary basis for its

defamation claim against the @ NotUliBehringer user. The evidence Music Group has submitted shows that this user’s criticisms fall into two categories. The first consists of direct and indirect commercial criticism of Music Group’s business practices and products. . . . This is legitimate `commercial speech’ that enjoys First Amendment protection. See Highfields Capital Management, L.P. v. Doe, supra (noting protected nature of `sardonic commentary on a public corporation . . . through irony and parody’). `These are views in which other members of the public may well be interested — and that defendant has a right to express anonymously.’ . . . 

The second group of comments by @ NotUliBehringer are different; one comment indirectly accuses the company’s CEO of tax evasion; another of traveling internationally while concealing things inside his body. . . . The first comment is troubling, the latter merely crass. But they are both onetime comments. Even the tax-evasion remark would likely be read as what it is: one rant among countless others from someone with an obvious grudge against Music Group’s CEO. The court does not think that, in the eyes of an ordinary person, this one-time comment would lower the CEO in the community’s estimation. Even if it would . . . — and reading the statement `in context,’ which is `the only relevant way to view communications,’ Highfields Capital Management, L.P. v. Doe, supra — this single comment does not outweigh the defendant’s 1st Amendment interest in anonymous speech.

She then took up the claim against the @FakeUli user, explaining that Music Group had

shown a `real evidentiary basis’ for claiming that the @ FakeUli user’s postings have defamed it. According to Music Group, the @ FakeUli user has stated that Music Group intentionally designs its products to break within three to six months, that the company `encourages domestic violence and misogyny,’ and that the company’s CEO `engages with prostitutes.’ . . . If the first comment falls within the realm of legitimate commercial criticism, the last comments are plainly defamatory and are so per se. These comments would provide a `real evidentiary basis’ for Music Group’s defamation claim. The court would note, though, that Music Group can pursue only comments that are made about, or implicate, the company itself— and not those about its CEO, who is not a party to this suit. . . .

The one @ FakeUli comment that could stand as actionably defamatory is the remark in which @ FakeUli accuses Music Group, as a company, of encouraging `domestic violence and misogyny.’ For purposes of this prong of the Highfields analysis, the court will assume that this comment can underwrite a viable defamation claim (though it is conceivable that, for reasons discussed below, the claim may viewed as enjoying a 1st Amendment `privilege’ that makes it inactionable in defamation). . . .

Finally, the judge applied the final Highfields analysis, which “requires the court to `compare the magnitude of the harms that would be caused to the [plaintiffs’ and defendants’] competing interests’ by ordering that the defendant’s identity be disclosed.” Music Group Macao v. John Does, supra.  She began with the @ NotUIiBEhringer account, explaining that the most

troubling comment Music Group attributes to @ NotUliBehringer is the indirect suggestion that the company’s CEO evaded taxes. (The other comments, as the court has noted, amount either to legitimate, `sardonic’ commercial criticism, or a one-time eruption of the sophomoric.) First, this comment appears to be entirely about Music Group’s CEO, rather than the company itself. For reasons that straddle defamation and 1st Amendment law, the remark probably cannot serve to ground Music Group’s own defamation claim. . . .

The court does not discount the impropriety of the tax-evasion charge, or how troubling it is to be the comment’s target. But this seems to have been a one-time piece of snideness. Viewed `in context,’ Highfields Capital Management, L.P. v. Doe, supra, amid the blizzard of invective from an obviously disgruntled person, the court is more concerned that breaching the defendant’s anonymity for this single remark would unduly chill speech, and `deter other critics from exercising their `1st Amendment.’ Art of Living Foundation v. Does, supra.

She then conducted the final Highfields analysis of the @ FakeUli account, noting that the

only comment that might have justified unmasking @ FakeUli ‘s identity is the one that accuses Music Group of encouraging `domestic violence and misogyny.’ That comment, on its face and read alone, is less like legitimate commercial criticism and more like the `fighting words and obscenity’ that `are not protected by the `1st Amendment at all.’ See In re Anonymous Online Speakers, 661 F.3d 1173 (U.S. Court of Appeals for the 9th Circuit 2011). . . .

But there was more to the comment than Music Group reproduced here. . . . Immediately following the words `domestic violence and misogyny’ is a shortened URL. That URL is home to a short video, a comedic ad promoting one of Music Group’s products: a roughly briefcase-sized metal box that is apparently an audio mixer. In the commercial — a domestic tableau not unreminiscent of early Mike Leigh — a woman tries to convince a man to leave their house for a social affair. He ignores her; he is too busy using his Music Group mixer.

Growing irate, she begins to hurl things at him. He blocks these seriatim with his mixer, which the commercial’s title indicates is `Bulletproof.’ He first blocks a coffee mug, then a wine bottle, then a chef’s knife. Finally, emotions in crescendo and denouement surely at hand, she raises a gun and fires — only to be struck by the ricochet off the impregnable mixer. The hapless woman falls dead, and hammily. Falls, too, the curtain.

The judge then explained that the

point is that the video is comedic. (Whether funny or not is another question.) In this context, there is no way to see @ FakeUli ‘s comment as anything other than joking and ironic. It does not fall outside the 1st Amendment for being in poor taste.

She therefore denied Music Group’s (i) “motion to enforce the @ NotUliBehringer and @ FakeUli subpoenas” and (ii) “motion to transfer this proceeding to the Western District of Washington.”



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