Anonymous Internet posts attacking employers and executives have become all too common. Until the Ninth Circuit Court of Appeals’ decision last week in Anonymous Online Speakers v. United States District Court for the District of Nevada Reno, courts have relied on the First Amendment right to speak anonymously to set substantial obstacles in the path of employers and executives seeking to compel Internet service providers to disclose the identity of anonymous speakers on the Web. In a case of first impression in the federal appellate courts, the Ninth Circuit appears to have made it significantly easier for employers and executives to unmask the perpetrators of anonymous Internet attacks.

The case arose out of Signature Management TEAM’s alleged smear campaign against Quixtar. According to Quixtar, TEAM was responsible for anonymous posts that accused Quixtar of “systemic dishonesty,” “systemic noncompliance” with regulations, and improperly treating its franchisees. TEAM’s online content manager refused to answer questions at his deposition seeking the anonymous speaker’s identity. Quixtar sought an order compelling disclosure; the anonymous speakers intervened in the proceeding to prevent disclosure.

In a significant victory for employers and executives, the Ninth Circuit rejected the approach to unmasking requests taken by all other courts to date. These courts required the putative victim of an anonymous attack to produce levels of proof that almost always will be unattainable at the early stages of a case when the unmasking issue typically is addressed, so the defendant can be identified, served with the complaint, and subject to discovery. The Ninth Circuit ruled that rather than requiring the victim to prove his claims, trial courts should determine whether the anonymous speech is political, religious or literary and entitled to heightened protection, or commercial and entitled to less protection.

When anonymous speech is “commercial,” which typically will be the case when employers or executives come under attack, a trial court should apply a balancing test. The test weighs the anonymous speaker’s First Amendment rights against the “need for relevant discovery,” recognizing the "great potential for irresponsible, malicious, and harmful communication" and that particularly in the age of the Internet, the "speed and power of internet technology makes it difficult for the truth to 'catch up' to the lie." Although future application of these high-level principles is difficult to predict, the Ninth Circuit’s new approach to “unmasking cases” almost surely will result in greater success for employers and executives seeking to unmask anonymous speakers on the Web.

While savoring this victory, employers should keep in mind that litigation against anonymous speakers on the Web can be expensive, time consuming, and distracting. In many circumstances, the victims of an anonymous attack will be better served by letting the offending comment become lost in the daily flood of information on the Internet.

This entry was written by Philip L. Gordon and Christopher M. Leh.

Photo credit: rtiom