The Vanguard has proven partially if not mostly successful in its efforts to quash a subpoena seeking records by the plaintiffs in the suit Calvin Chang v. the Regents of the University of California.
The plaintiff’s subpoena sought identifying information, including names and addresses, of those individuals who under the names “Mack Chuchillo” and “anonymous” posted certain comments about Mr. Chang and his lawsuit. The comments were posted on the Vanguard just a few days after plaintiff filed suit in February 2009.
“The records reveals that in response to the subpoena, Google notified moving parties that records relating to the blog were sought and that Google considered moving parties to have a legitimate interest in such records.”
The court also rejected the plaintiff’s claim of libel.
Sacramento Superior Court Judge Shelleyanne Chang (no relation to the plaintiff) ruled:
“plaintiff’s opposition expresses no clear intent or desire to pursue a libel claim against the posters of the internet comments. Moreover, plaintiff has not made the requisite prima facie showing of a valid libel claim against them in order to justify the requested disclosure of their personal information. In particular, plaintiff’s opposition nowhere showed or attempted to show that the comments posted to the blog were ‘assertions of fact which are provably false’ and not non-actionable opinions, as required by Paterno v. Superior Court (Ampersand Publishing) (2008) 163 Cal.App.4th 1342, 1349-1350. This issue was specifically raised in the moving papers (see, p.7:15-21; p.8:4-10), but plaintiff’s points & authorities state nothing more than the comments are alleged to be “per se defamatory” and plaintiff “is entitled to the discovery necessary…to determine the identity of the poster [sic]” (see, p.8:15-18). While it is true that this portion of the opposition cites to plaintiff’s own declaration, the relevant portion of the declaration (p.6:12) merely reiterates the comments posted to the blog without any demonstration that the comments are ‘statements of fact which can be proven false.’
Accordingly, the Court concludes plaintiff has failed to meet his burden of justifying the disclosure of the posters’ identity in order to proceed with libel claims against them.”
However, in one area the court agrees with the plaintiff and it stems again from a potential breech of the settlement agreement, which is the basis of the lawsuit altogether.
The Judge writes:
“On the other hand, the Court agrees that if the comments posted on the blog were authored by “managing agents” of the university, they would constitute evidence relevant to the existing claims against the university, including breach of the settlement agreement. Since plaintiff has identified specific reasons to believe the postings were likely made by certain “managing agents” of the university (i.e., the use of unique terms and reference to information not generally known), the subpoena appears reasonably calculated to lead to admissible evidence.”
The logic here makes some sense. Let us suppose one signs a settlement agreement that includes a confidentiality clause which is fairly standard. Part of that clause means you cannot talk about or attempt to defame the other parties of the lawsuit. So does that mean you can anonymously post information about the case on an internet board without any possibility of retribution or discovery of that act?
Even here, the Judge makes it very difficult for the plaintiffs, making the burden very high and giving non-managing agents a high degree of protection for privacy.
The Judge writes:
“Nevertheless, because there remains a substantial possibility that the comments were posted by individuals with no connection at all to the university and disclosure of their personal information would therefore be unjustified, the Court imposes the following conditions on plaintiff’s discovery of the identity of the posters to the blog.”
The language of the Judge’s ruling here becomes lengthy, but basically the judge gives the plaintiff the options of paying at his own expense for a third party to perform an Internet address trace and attempt to match it to named managing agents and if there is a match only then could confidentiality be breached. In other words, the Judge has set an extremely high bar and only if the individuals are managing agents and only if they can identify the individual through an IP address, could they discover who the individuals are.
The Sacramento Bee covered this story in this morning’s paper.
In the article, Matt Zimmerman explains that the courts have generally been protective of the right to anonymous speech, but there have been exceptions.
The leading case in California was issued in San Jose in early 2008, Krinsky v. Doe 6. In that case, the court ruled that while the First Amendment protects anonymous speech, online anonymity may be breached.
“When vigorous criticism descends into defamation, constitutional protection is no longer available.”
There is a lesson to be learned here for those using this site. First, if you are going about your day posting on here anonymously, you have nothing to fear, the law protects your right to post anonymously. The Vanguard stood up for that right retaining counsel and facing a possible $7000 sanction for attempting to quash this motion.
But second, your right to post anonymously is not absolute. The Vanguard has always warned that potentially libelous statements were subject to deletion. Generally that has been used to police comments when they get out of hand, but we have always been very tentative about deleting anything. We have always tended to err on the side of leaving things up.
Third, libel has a fairly high threshold to meet. We have always left comments about public officials up knowing that the standard for libel there is exceedingly high. There have been recent cases where anonymity has been breached over libel and thus while this is not one of those cases, people ought to be aware of that.
Fourth, in this case, there was a settlement agreement that bound certain individuals, the Judge has ruled that if those individuals indeed posted on the Vanguard, their identity could possible be revealed in court and they could be sanctioned for their conduct.
Given the nature of the material we deal with on the Vanguard, it is only a matter of time before these matters come up again. As of March 2009, we are no longer on the Google server and thus the site is no longer managed by Google.
The bottom line that people should be aware of, is that if you post comments, stay within the boundaries of the law and do not necessarily expect that anonymity is absolute. As the Bee writes this morning:
“Those anonymous comments you’ve been posting online might not be as anonymous as you think.”
—David M. Greenwald reporting
The point that needs to be taken away here is that generally, anonymous postings will be respected by the courts, unless there is some proof that the anonymous poster is doing something illegal – such as engaging in defamation or revealing the terms of legal settlement.
I suspect this case sets a precedent, in defining the parameters of when anonymous postings on the internet may be discovered. One parameter was already defined – defamation. Another defined parameter is now out of court settlements in which a nondisclosure clause has been signed, and how a potential plaintiff or defendant may access the identity of the anonymous poster in such a case.
BTW, DPD, you said Google is no longer your server. So what company is? It makes it sound as if you are not happy with Google’s position they took on this issue, which was to release the info unless you filed a motion to quash. Would another server have made a decision any differently do you think?
Right now the web development company Hathway Tech is hosting our server. At some point soon, we’ll probably have our own dedicated server given the bandwidth the site is now using due to increased traffic and other expansions. Google served the Vanguard well for two and a half years. I have no problem with the way they handled this, they gave us the opportunity to respond as we saw fit and that is certainly fine and I have no problem with them.
DPD: thanks for sharing the ruling. It is very interesting … not an area of law that I practice in, and I think that at a moral/reasonable level, the Court seemed to get it right.
May I ask that you publish the pdf here of the court’s order?
I post 99% of the time with my name, and the other 1% I write as if you were going to get a subpoena for the anonymous post. Or someone has hacked your web site and gets the emails (the most likely scenario).
Speaking of privacy and hacking, I would not be a bit suprised if certain business interests are not already hacking into the email addresses of the main progressive leadership in town. After all, some of the projects and issues that the City faces are worth $1 billion or more, and those proponents have a huge interest in getting the inside story on the opposition. Just some food for thought. I always assume that my emails are hacked.
Afraid to post what I think, Gov is watching and they may get it.
So in case they get this. I think Gov is great and they are doing a great job.
signed,
Your loyal subject
A couple of other outlets have picked up the story
Chronicle of Higher Ed ([url]http://chronicle.com/blogPost/Anonymity-Online-Not-Absolute/8050/[/url])
NBC News in Philadelphia ([url]http://www.nbcphiladelphia.com/news/tech/Internet-Commenters-Your-Anonymous-Secrets-Out.html[/url])