Posted by Jeff from LTU-207-73-65-124.LTU.EDU (220.127.116.11) on Thursday, July 11, 2002 at 3:04PM :
What does the name "CyberSLAPP" mean?
"CyberSLAPP" cases are so-called because they are Internet versions of a much older abuse of the legal system known as SLAPPs, or Strategic Lawsuits Against Public Participation. SLAPP cases are typically brought by powerful corporations or public figures against regular individuals who oppose them in some way by fighting a new development, for example. The lawsuits are "strategic" because they have little chance in prevailing in court, but are intended to intimidate or silence citizens who cannot afford the high cost of defending against them. SLAPP suits Cyber and regular alike are unfair because the "punishment" that often matters most to average citizens (high legal costs, losing online anonymity) comes not after a court or jury's judgment, but as a result of the mere filing of the lawsuit.
Are SLAPP suits really allowed under the law?
Anyone can file a lawsuit. However, because of the danger that SLAPP suits pose to free speech, some states have passed laws to deter companies and others from filing them. Those laws typically require plaintiffs to pay the defendant's legal fees when a suit is found to be a SLAPP, and halt a case until a court determines whether a lawsuit is frivolous. And one court has specifically ruled that California's anti-SLAPP statute applies to online speech.
How do CyberSLAPP plaintiffs discover the identity of anonymous Internet critics?
CyberSLAPP plaintiffs usually get the personal information you gave an ISP or online message board when you signed up (name, address, telephone number, etc.). Some web sites that host discussion boards might only have your e-mail address, in which case a second subpoeana to the ISP that hosts that address will reveal your identity. In many cases, even more detailed information about your use of the Internet can be obtained; it's important to realize that when you go online, you leave electronic footprints almost everywhere you go. (With advanced knowledge of the Internet, however, there are ways to cover your tracks.)
Don't judges review subpoenas before they are sent to ISPs?
No. The issuing of civil subpoenas is not monitored by the court handling the case. Under the normal rules of discovery in civil lawsuits, parties to a suit can simply send a subpoena to anyone they believe has information that could be useful. That information doesn't even have to be relevant to the lawsuit, as long as it could possibly lead to the discovery of relevant information. The only way that a court will evaluate an identity-seeking subpena is if either the ISP or the target of the subpoena files a motion asking the judge to block the subpoena. Unfortunately, in practice that rarely happens. That is because these subpoenas usually have a short, roughly 7-day deadline, and because many people never even find out that their Internet data has been subpoenaed.
Isn't my ISP required by law to tell me if someone asks for my Internet-usage records and identity?
Unfortunately, there is currently no legal requirement for an ISP to notify you that someone has asked for your data through a subpoena . That means your anonymity could be lost before you even know it's under attack. However, some ISPs are better about this than others and do have a policy of providing notice even though they're not legally required to do so.
What should I do if I receive notice that my ISP has received a subpoena for my data?
First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You might want to ask your ISP for a copy of the subpoena if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately, and you may want to request that they delay compliance to give you time to find a lawyer. Then find a lawyer, who will file a motion to have the subpoena thrown out. (If your lawyer can later prove that the lawsuit was frivolous, you may be able to recover legal fees if your state has passed an anti-SLAPP statute.)
How much time would I have to try to fight a subpoena?
The ISP's deadline for complying with a subpoena can vary depending on the judge, the jurisdiction where the case was filed, and other factors. A typical deadline is 7 days. This isn't much time, so again you may want to request an extension of the deadline from the ISP and the court so your lawyer can prepare your challenge to the subpoena. But you can NOT count on getting an extension of time from them, because they can always say "no." So as soon as you receive notice of a subpoena that you want to fight, you should act fast to get legal help.
What are the typical claims behind a CyberSLAPP suit?
The most common complaints by CyberSLAPP plaintiffs are defamation, trademark or copyright infringement, and breach of contract. Speech that involves a public figure such as a corporation is only defamatory if it is false and said with "actual malice." It also must be factual rather than an expression of opinion. In the US, because of our strong free speech protections, it is almost impossible to prove defamation against a public figure. Trademark and copyright complaints typically claim that defendants have violated intellectual property rights by using the name of a corporation or its products, or by quoting from some of their copyrighted materials such as an annual report. In reality, the First Amendment includes a clear right to criticize and discuss corporations and their products, and the law includes clear exceptions for the "fair use" of protected material for those purposes. Breach of contract suits often involve a claim that anonymous speakers might be employees who have violated a contract by releasing confidential information. Of course, the right to anonymous speech is meaningless if a corporation can unmask your identity at will because you might be an employee breaking a promise of confidentiality.
How do judges decide whether to let a subpoena go forward?
This is a very new area of the law, and there are few well-established principles. The courts do have a duty to balance the right of anonymity against the need to prevent true defamation. So far there have been both good and bad rulings from judges; fortunately several have ruled that the plaintiff must prove that his case has at least a theoretical chance of prevailing before anonymity can be stripped away. Other cases have established a set of key factors to be used in judging anonymity-stripping subpoenas. In most of these the key factors are 1) that the party seeking the subpoena provide evidence that the identity is needed; 2) that the identity is directly needed for a key element in the case; 3) and that the identity information is not otherwise available to the party seeking it. While not yet firmly entranched in the law, these common-sense principles are clearly the right way to ensure that First Amendment rights are protected while still allowing identity to be revealed when there is a genuine need to do so.
What are some of the important cases in this area of law?
Important CyberSLAPP cases include Dendrite v. Does, Melvin v. Doe, Doe v 2TheMart.com, and Global Telemedia International v. Doe. Additional information about these and other cases can be found by searching the Internet or looking on the Web sites listed below.
Can I do anything to help change this unfair situation?
You can do several things. Be educated about your rights. Find out your ISP's policy on the handling of subpoenas, and encourage them and any Web sites you frequent to adopt good policies, especially a pledge to notify you of any subpoena before any private information is disclosed. Encourage your state legislators to pass legislation requiring such notice, and press them to amend state anti-SLAPP statutes to explicitly include Internet anonymity cases.
What other resources are available?
Web sites dealing with this issue include:
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The following collection of court opinions were issued in cases where Internet speakers were sued for their online speech, or where the identities of Internet speakers were sought by subpoena. To the extent that Internet speech defendants seek to invoke these opinions for their own situations, it is important to be mindful of the fact that, especially for cases under state law, each state has different procedures and laws that must be given careful consideration.
In re 2TheMart.com, Inc. Securities Litigation
In a precedent-setting ruling, a federal court in Seattle upheld the right to speak anonymously on the Internet. U.S. District Court Judge Thomas Zilly quashed a subpoena seeking to force an Internet service provider to disclose the identity of persons who spoke anonymously on an Internet message board. The decision was the first in the country to address the standard for compliance with a subpoena where the "J. Doe" (who used the pseudonym NoGuano) was not a party to the case, and no allegations of liability against Doe had been made. The court held that the identities would not be turned over unless (1) the subpoena was issued in good faith and not for any improper purpose; (2) the information sought relates to a core claim or defense; (3)the identifying information is directly and materially relevant to that core or defense; and (4) information sufficient to establish or disprove that claim or defense is unavailable from any other source.
Doe v. 2themart.com, Inc., 140 F.Supp.2d 1088 (W.D. Wash. 2001)
Dendrite International v. Doe
A software development and servicing company sued four individuals who posted critical comments on a Yahoo! bulletin board, allegedly including defamatory statements and disclosing trade secret information. The plaintiff then sought to subpoena the identities of the four defendants. Adopting the arguments advanced by Public Citizen and the ACLU of New Jersey as amicus curiae, the trial judge and then the appellate court set forth standards for judging such subpoena requests, including requirements of notice, specification of actionable statements, review of claims for legal validity, testing the factual support for the claims, and balancing the interest in anonymity against the plaintiff's interest in proceeding.
Adobe Acrobat Documents:
Dendrite Appellate Opinion, 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001)
Dendrite Superior Court Opinion
Marvin v. Shell
Radio host filed a defamation suit against three defendants based on their statements about him on internet bulletin boards. The suit was brought in federal court, with subject matter jurisdiction based on diversity of citizenship: the plaintiff lived in Illinois, and one of the three defendants was known to live out of state. The residence of the other two John Doe defendants was not known. On its own motion, the Court dismissed the action, because there cannot be any certainty that the parties are from different states if their place of residence is not alleged in the complaint.
Adobe Acrobat Documents:
Marvin vs. Shell Dismissal.pdf
Melvin v. Doe
An anonymous online newsletter accused a Pennsylvania state court judge of improperly lobbying the governor on behalf of a friend for a judicial appointment. Judge Melvin sued the web site operator for libel. The John Doe defendant argued that his anonymity should not be breached unless Judge Melvin could prove she suffered actual economic harm from the alleged libel. The trial court rejected this argument, but held that "plaintiff should not be permitted to engage in discovery to learn the identity of the Doe defendants until the Doe defendant has an opportunity to establish that, as a matter of law, plaintiff could not prevail in this lawsuit." The Court also said that a protective order should be entered to prevent disclosure of defendant's identity to third parties until the plaintiff prevails in the lawsuit. Doe recently filed a petition for review to the Supreme Court of Pennsylvania appealing the trial court's decision to require disclosure of Doe's identity to the plaintiff.
Adobe Acrobat Documents:
People of the State of Illinois v. Schrock
In a criminal prosecution, the defendant sought to identify the authors of postings on a message board maintained by a local internet service provider, to show the bias of certain witnesses for the prosecution by discovering whether they were the persons who had posted critical comments. The ISP objected to the subpoena on First Amendment grounds, and the court refused to enforce it.
Adobe Acrobat Documents:
Transcript Of Courts Oral Opinion - 6-21-02.pdf
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