Journal of Information, Law and Technology Cybersmearing: a legal Conflict Between Individuals and Corporations

control, the infringer's acts; or (2) receives a direct financial benefit

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control, the infringer's acts; or (2) receives a direct financial benefit‚ from the infringement (Walton, 1999). This suggestion does not really carve out any new law as both the Restatement of Torts Third and common law have both recognized the imputed knowledge concept in the context of actual and apparent agency. What is significant, though, is the fact that ISPs will have to continually develop increasingly sophisticated technologies to monitor the usage activities of users with judicial scrutiny then shifting to the adequacy of such technologies. The less adequate technologies are deemed the more likely that vicarious liability for negligence will be asserted.
Invasion of privacy based on freedom from warrantless search or seizure. United States law has long recognized the application of the Fourth Amendment to preclude warrantless searches and seizures, provided that there is neither probable cause (a criminal standard) nor areas on able expectation of privacy (a civil standard) (US. v. Katz). Absent a reasonable expectation of privacy, files stored on an Internet Service Provider's server may not be protected by the Fourth Amendment and that the consent of the ISP is all that is required for plaintiff's to have access to the identity and information of anonymous users.
In John Doe v. 2THEMART.COM Inc., 140 F. Supp. 2d 1088 (2001), the United States District Court for the Western District of Washington directly addressed the issue of the right of privacy of ‘John Doe’ making accusations of fraud versus the right of a corporation to protect itself from what it asserted were the defamatory implications of such statements. John Doe argued that anonymity on the Internet was a right protected by the First Amendment and that compelled disclosure of his identity was an unconstitutional invasion of his privacy. 2THEMART.COM argued that the statements were defamatory and, by definition, unprotected by the Fourth Amendment. In its decision, the court took the position that:
‘the Internet represents a revolutionary advance in communication technology...It allows people from all over the world to exchange ideas and information freely’(at page 1101).
The court noted that the issues raised in this case challenge the scope of an individual's First Amendment rights and, thus, challenged the court to clarify the degree of proof that must first be demonstrated by the corporate plaintiff in support of its defamatory cause of action. In other words, the court was not convinced that mere allegations of defamation alone were sufficient to outweigh the defendant's right to remain anonymous. A showing that the statements made were such as to reasonably constitute defamation might first be required before disclosure would be compelled. Such reasoning would be consistent with the idea that a lawsuit must first show that it has merit before the anonymous interests of the defendant would be compromised. Of course, such reasoning presupposes that the anonymous user was first notified of the pending claim for disclosure by the ISP. Absent such notice, the argument cannot be presented. So, the question that remains is not as much one of an invasion of privacy as it is one of due process and whether an ISP should be required to provide notice of a pending subpoena in order to permit the defendant a fair opportunity to assert applicable Fourth Amendment arguments.
Courts preceding John Doe v. 2THEMART.COM had begun to explore the idea of requiring some degree of support for the merits of claims asserted before the court would compel the disclosure of anonymous user identity. In the case, In re Subpoena Deuces Tecum to America Online, Inc., 52 Va. Cir. 26 (2000) 7, a lower court in Virginia found that:
‘the right to communicate anonymously on the Internet falls within the scope of the protections afforded by the First Amendment. [But that] the First Amendment [did] not absolutely protect [a defamatory statement] made anonymously nor the release of confidential inside information’ (at 38).
American Online had argued that the subpoena to uncover the identity of is anonymous user should be dismissed on the basis of First Amendment concerns. However, the court held that the subpoena should stand and that any Constitutional issues, whether based on the First or the Fourth Amendments, would be more properly raised the affected party, i.e., the anonymous user and not the ISP. The court based its reasoning on the fact that the user was actually the affected party and that disclosure would ordinarily be warranted absent a showing that the subpoena would have an oppressive effect on the ISP.
The decisional structure of the In re Subpoena Deuces Tecum to America Online decision was revisited in Dendrite International, Inc. v. Does, 342 N. J. Super. 134 (2001), when a New Jersey state court was asked to issue a subpoena to Yahoo! seeking to compel disclosure of the identity of an Internet user in support of its claims of misappropriation of trade secrets, breach of contract and fiduciary duty, and defamation. In framing its decision, the Dendrite court in a lengthy opinion, made reference to a California case, Columbia Ins. Co. v., 185 F.R.D 573 (N.D. Cal. 1999), which had developed a four-prong test that a plaintiff must first satisfy before a court will compel issuance of a subpoena for identity disclosure. Interestingly, the case did not center on an act of defamation; but, instead, concerned the alleged violation of a registered trademark. The plaintiff in, Columbia Ins., was the assignee of various trademarks including one for ‘See's Candy Shops, Inc’. The plaintiff argued that the defendant,, had purposely violated the various trademark interests of the plaintiff including the misappropriation of the plaintiff's right to the ‘’ domain name. The need for a subpoena to compel disclosure arose, because the plaintiff did not know who had registered the website name, i.e., since the site owner had used an alias when registering. The defendant,, argued that there was then no law that prohibited the selection of the domain name that it chose and that a compelled disclosure of the registrant’s name was unwarranted and unnecessary. The court found that since there was no apparent infringement on the trademark interests of the plaintiff there was really no need to compel disclosure of the anonymous registrant’s true identity. In reaching its conclusion, the court had formulated the four-prong test, which the Dendrite court discussed and adopted.
The court in held that a plaintiff seeking to unmask the author of an anonymous Internet message posting must satisfy four separate and distinct criteria before a court will compel disclosure by subpoena:
First, the plaintiff must ‘identify the missing [anonymous] party with sufficient specify that the Court can determine that the defendant is a real person or entity who can be sued in federal court’(at 586).
Second, that all steps taken in the plaintiff's attempt to locate the defendant must be detailed (at 586). This is a fairly easily satisfied element as most ISP's now routinely resist disclosure of the identity of anonymous users absent some of form of compulsory process.
Third, the plaintiff must establish that its lawsuit ‘could withstand a motion to dismiss’ (at 586). This criteria is important since the court felt it necessary to ‘prevent abuse of [the] extraordinary application of the discovery process and to ensure that [the] plaintiff has standing to pursue an action against the defendant’ (at 586).
Fourth, the plaintiff must file the discovery request with the court and show that the discovery is narrowly crafted to yield only information identifying the poster (at 586).
Although the court in Dendrite professed to apply the four-part analysis, it actually required the plaintiff to prove a prima facie case before it would be able to obtain a subpoena to compel discovery of the identity of an anonymous user. In other words, the court felt that mere allegations of a defamatory injury were not sufficient; and, that a required element of the plaintiff's case should be actual proof of an injury to its business reputation. This principle as supported when the appellate court reviewing the lower court decision in Dendrite wrote that ‘the trial court must consider and decide those applications by striking a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through assertion of recognizable claims based on actionable conduct of anonymous, fictitiously-named defendants’ (Dendrite International, Inc. v. JohnDoe, No. 3, A-2774-00T3 (July11, 2001)). In effect, the Dendrite appellate decision has affirmed the requirement for a plaintiff to notify the anonymous user that they are the subject of a subpoena; and, that the plaintiff provide the actual comments inferred as defamatory, accompanied by some reasonable proof of the viability of the claims asserted.

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