Trial Court Doesn’t Unmask Parodist Twitterers
Plantiffs are trying to unmask Twitter users who make derogatory posts about the plaintiff corporate entities and their CEO. (Initial blog post about the case filing here.) They filed suit in the Western District of Washington, and sought and were granted permission to conduct early discovery. They then issued subpoenas to Twitter, seeking to identify the account-holders. Twitter resisted the subpoena and urged the court to unmask the users only after conducting an analysis of the substantive claims and weigh the chilling effect of unmasking these posters.
The court initially determined that plaintiffs were entitled to identify the speakers, but Twitter moved for clarification, urging the court to employ a slightly different test. Paul Levy from Public Citizen also filed an amicus brief, urging the court to reconsider its earlier order and to deny the discovery. Public Citizen argued (among other things) that the court should employ the Dendrite test for unmasking anonymous commenters. (Public Citizen’s post announcing the filing of its amicus brief here.)
The court recently issued a corrected order–this time denying the discovery (and allowing the speakers to remain anonymous). The court employs the test from Highfields Capital where the person seeking the discovery:
Must first persuade the court that there is a real evidentiary basis for believing that the defendant has engaged in wrongful conduct that has caused real harm to the interests of the plaintiff. If the plaintiff makes this showing, the court must then assess and compare the magnitude of the harms that would be caused to the plaintiffs’ and defendants’ competing interests by ordering that the defendant’s identity be disclosed.
Applying a balancing test, the court says that plaintiffs are not entitled to unmask either account-holder.
The @notulibehringer account, which now appears inactive, criticizes the company’s business practices and products and the company’s CEO (the poster indirectly accuses the CEO of tax evasion). The @fakeuli account says that the company designs its products to break within 3-6 months and encourages “domestic violence and misogyny.” This account also accuses its CEO of nefarious activities. Of the various statements, the court is troubled by (i) the indirect suggestion that the company’s CEO evaded taxes, and (2) the statement that the company encourages “domestic violence and misogyny.” On balance, the court says neither statement is enough to justify unmasking. The company lacks standing to sue for the statement about the CEO, and in any event, viewed “in context” this is a “one-time piece of snideness” that does not justify unmasking the speaker. The statement regarding domestic violence and misogyny when similarly viewed in context is more “joking and ironic” than literal.
Kudos to Twitter for taking a speech-protective approach and to Paul Levy and Public Citizen for their amicus brief. This case illustrates the difference when the judicial process hears from multiple perspectives rather than just the plaintiffs. Paul has suggested that, in ex parte circumstances, the court should appoint counsel to protect the interests of the First Amendment and the speaker.
As to the merits, the balancing test feels clunky. To the extent the court considered some of the posts to be defamatory (and there appear to be other arguments as to why the claims fail), does the court nevertheless have the option of not ordering the speakers unmasked because of the chilling effect on speech? Both sides are probably not perfectly happy with the articulation and application of the balancing test.
There are a bunch of other background considerations in the case that make it interesting: (1) the viability of the federal claims/jurisdiction and whether the case belongs in state court; (2) whether the posters are current or former employees supposedly bound by a non-disparagement clause; and (3) the availability of anti-SLAPP fee-shifting.
Case citation: Music Group Macao Commercial Offshore Limited et al. v. Does, 14-mc-80328-LB (N.D. Cal. Mar. 2, 2015). Macao’s complaint and discovery motion.