Court Goes Too Far in Protecting Anonymous Commenters?
Evan Brown recently posted about a case where a federal court protected the identity of anonymous commenters, and in the process I think went too far ("Site operator successfully challenges subpoena which sought to unmask anonymous commenters").
It's a somewhat unremarkable case, but in some ways demonstrates that courts can be overzealous in protecting "privacy and anonymity".
The basic facts are that plaintiff brought a harassment case. A newspaper ran an article about the case, and anonymous commenters claiming to have personal knowledge chimed in. Plaintiff sought the identity of these commenters. The court denied plaintiff's request.
Access a copy of the order here [pdf].
The court first answers the procedural question of whether the newspaper may assert the anonymity rights of the commenters. After five full pages of discussion, the court concludes that the newspaper may assert the rights of the anonymous commenters.
The crux of the court's substantive analysis is that the evidence sought by plaintiff would be available elsewhere - i.e., directly from the anonymous commenters themselves. Presumably plaintiff has some idea of who the witnesses may be to the harassment that took place, and plaintiff should be able to track down the necessary testimony through traditional discovery channels. I don't think this conclusion is problematic. This shouldn't end the inquiry. There is one fairly compelling reason for plaintiff to obtain the identity of the commenters. Plaintiff will typically take depositions or statements of the witnesses. The comments (of the particular commenters) would be an invaluable way to test the veracity of these statements. People are typically honest when they are anonymous (or when they think they are). As such, the "anonymous comments" would be the greatest measure of witness credibility for these particular witnesses.
So what's a possible solution? The court should have considered denying the motion without prejudice to plaintiff later renewing the motion to find out the comments made by particular witnesses (from whom the plaintiff has already obtained statements or deposition testimony). This is a fairly simple and practical solution. To me, the court's resolution was particularly problematic since it found that "the information sought by plaintiff is directly and materially related to the plaintiff's core claims of sexual harassment and retaliation," but nevertheless denied access to the commenters. I'm skeptical that there's any real policy in favor of anonymity here. The bottom line is that you don't get to be anonymous as a witness in a lawsuit. Ultimately the identity of the witnesses will come out in the record. All plaintiff asks (or should have asked) is the ability to test the veracity of the comments of the witnesses against their deposition testimony.
I'm a fan of Doe v. 2theMart (the leading privacy case), but I think the court got a little too excited about it here.
(NB: The court doesn't discuss the effect of the shield statute, which could come into play, particularly since the website is a newspaper.)