United States: Anonymous Online Speech: Considerations For Victims And Speakers

In today's world — where social media has become a source of news for many — companies and individuals often find themselves the subject of negative and anonymous online comments. These comments can give rise to legal claims — defamation, copyright and trademark infringement, unfair competition, and more — but unmasking an anonymous critic and holding them responsible is no small challenge.

Conversely, companies and individuals may choose to speak anonymously to protect themselves from retaliation, to safeguard their reputations when discussing sensitive issues or, in the case of companies, to prevent harming their relationships with other businesses when blowing the whistle on bad practices. Anonymous speech is protected by the First Amendment, but these protections are not boundless.

In the closely watched case of Glassdoor Inc. v. Andra Group, LP, the Texas Supreme Court was expected to provide further guidance as to when a plaintiff can unmask an anonymous online speaker. In that case, an online clothing company sought to depose Glassdoor to unmask 10 anonymous critics who left reviews on its site, for possible defamation and business disparagement claims. They did so under a Texas procedural rule that allows a party to obtain discovery before actually initiating a lawsuit but does not toll the statute of limitations.

The trial court held that the plaintiff could depose Glassdoor regarding two of the critics. A Texas court of appeals affirmed, holding that the plaintiff could unmask the critics because it raised a genuine issue that it had a potentially viable business disparagement claim and because it showed that each review made at least one disparaging statement of fact. The Texas Supreme Court reversed, holding that Glassdoor did not have to reveal the identities, but only because the possible claims were moot based on an expired statute of limitations. The court explained that, because the plaintiffs only sought to discover the critics' identities, without actually filing a "John Doe lawsuit" against them, the statute of limitations kept running and ultimately expired. In so ruling, the Texas Supreme Court sidestepped addressing the merits of the free speech issues and did not provide any further clarity regarding when a plaintiff can unmask an anonymous speaker.

Whether you are the victim of anonymous speech or you intend to speak anonymously, understanding the factors courts consider in deciding whether to unmask anonymous speakers is critical. As cases seeking to challenge anonymous speech have proliferated, courts around the country have created several tests to determine whether the identity of an anonymous online critic should be disclosed. Although the tests vary from jurisdiction to jurisdiction, most require that the plaintiff (1) make some attempt to notify the anonymous defendant that the plaintiff is seeking his or her information, (2) make a showing of the elements of the claims being asserted against the defendant, and (3) specifically identify the challenged statements and explain why they are legally actionable. If a plaintiff satisfies these requirements, many courts will then weigh the defendant's First Amendment right to speak anonymously against the plaintiff's need to obtain the information to protect against or remedy a wrong.

Whether you are the victim of anonymous speech or you intend to speak anonymously, understanding the factors courts consider in deciding whether to unmask anonymous speakers is critical. 

While the likelihood of success of any particular effort to unmask a critic will depend on the facts of the case, the court and the applicable unmasking test, case law to date suggests general traits that are common to successful unmasking attempts:

  • Notification to Anonymous Critic. The anonymous critic typically must have an opportunity to be heard. This can be done, among other ways, by posting the complaint or a notice of the complaint online as a response to the comment in question.
  • Specificity. It generally is not enough for a plaintiff to say that a critic's statements were defamatory, infringed a copyright or otherwise violated the law. A plaintiff typically must show that the statements are actionable — for example, by showing that they are provably false (for defamation) or pointing to copyrighted material that the critic used and demonstrating that the plaintiff has a valid copyright for the material (for copyright infringement).
  • Supporting Evidence. Most courts require supporting evidence of the plaintiff's claims — not just allegations — before they will unmask an anonymous critic.
  • Nature of Legal Claim. Many courts evaluate the legal claim being asserted by the plaintiff. Copyright infringement claims typically are more powerful than defamation claims.
  • Type of Speech. Many courts consider the nature of the critic's speech. Commercial speech — advertisements, references to specific products and other speech with an economic motivation — typically receives less protection than political, religious or literary speech. Similarly, expressions of opinion typically are protected while statements of fact ordinarily are not.
  • Forum. Many courts analyze the online forum where the speech appeared. These include job review sites, local business review sites, news site comment sections, product-specific discussion forums, message boards, social networking sites, blogs and fake websites. If a website states that users should post facts and information, or if users typically use the website in that way, a court may be more likely to find that negative comments are factual — and possibly defamatory — assertions. On the other hand, if a website states that it is a forum for users to express their opinions, a court may be more likely to find that the comments are nonactionable opinions. If a website is silent on the issue, a court likely will closely examine the totality of the comments and how the users generally utilize the website.
  • Context. Courts also may look at how the information is presented by examining, for example, whether it is grammatically correct or riddled with spelling errors, and what type of language is being used. For example, are the users posting factual information, or venting or otherwise voicing their opinions? If a statement looks and feels like a rant, a court may be more likely to find it nonactionable.

Although demanding, the criteria for unmasking an anonymous critic show that it is not impossible. If you are the victim of anonymous online speech, you may be able to unmask the responsible critic and pursue legal claims. Before initiating such an action, assess your prospects for success and carefully balance that against the potential risks — legal, reputational, commercial and financial — of bringing suit.

If you engage in anonymous online speech, you may be able to remain anonymous. Before speaking, ensure that your speech is legally protected — that it is not defamatory and does not disclose protected or private information, infringe on any intellectual property rights, or otherwise violate the law.

While each case depends on its specific facts, different types of speech receive different levels of protection under the First Amendment. Political speech — which includes ideas for bringing about social and political change — receives extensive constitutional protection; commercial speech — which involves a speaker trying to obtain a commercial benefit — receives intermediate protection; and obscene speech — which concerns offensive, and often sexual content — receives no protection. Even if you are very careful, the target of your speech may try to uncover your identity and take legal action against you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions