In several recent cases, companies have struggled to learn the identity of anonymous individuals who have posted company trade secrets on Web logs and message boards, sometimes in violation of company confidentiality agreements. Companies who are injured stress the need for courts to identify the guilty parties and hold them accountable for theft of trade secrets or breach of confidentiality agreements. Defendant Web posters who wish to conceal their identities cite the First Amendment as granting them a constitutional right to free speech and privacy. Decisions in such cases have raised the issue of whether, and in what circumstances, companies have a right to subpoena information connected to these Web logs and message boards in order to identify the anonymous authors, or whether the bloggers can anonymously reveal trade secrets on the Internet. This murky issue is appearing more and more often on the dockets of courts across the country, most recently in the Northern California case of H.B. Fuller v. John Doe.
In H.B. Fuller v. John Doe, H.B. Fuller contends that an employee who was subject to the company’s confidentiality agreement breached that agreement by revealing company trade secrets in a Web post on a Yahoo! message board. The company sought to obtain the identity of this individual with a subpoena on Yahoo! Inc. The defendant, an anonymous Web poster, sought to quash the company’s subpoena on Yahoo!, asserting in an anonymous declaration to the court that he was not an employee of the company, was not at the meeting where the information was divulged, and had no duty to keep the information secret. In a success for H.B. Fuller, Santa Clara County Superior Court Judge Socrates Manoukian denied the defendant’s motion, finding the defendant’s name "directly relevant" to the company’s claim for breach of the confidentiality agreement. Judge Manoukian explained that "[u]nlawful conduct, whether it is trademark infringement, burglary, robbery, theft or misappropriation of identity does not rise to a higher level because the fruits of the illegal conduct are called speech or are placed on the Internet." Anonymous Web posters are protected by a "qualified immunity," however, this protection must be balanced against a company’s right to protect its trade secrets and enforce its confidentiality agreements. In his appeal, the defendant disagrees with the court’s ruling and hopes to continue concealing his identity with an opposite holding from the 6th District Court of Appeal in the heart of Silicon Valley.
The 6th District has decided cases involving this issue twice already this year, falling once on the side of the company and once on the side of the anonymous defendant. The cases illustrate not only the fact-specific nature of the inquiry, but also that this is an area of the law that is still evolving. In Matrixx Initiatives v. Doe, decided primarily on procedural grounds, the court permitted a pharmaceutical company to learn the identity of the anonymous individuals who had used Web message boards to post defamatory information about the company. However, the court did not address the issue of whether the Web poster had a "First Amendment right to speak anonymously on the Internet." In O’Grady v. Superior Court, Apple Computer was unable to uncover the identity of individuals who Apple believed had "misappropriated and disseminated through web sites confidential information about an unreleased product" when the court quashed Apple’s subpoena of a news site’s e-mail service provider. The court’s decision was based specifically on a federal law aimed at preventing the disclosure of e-mail content and the First Amendment’s protection of journalists. Significantly, the court found that Apple had not taken sufficient steps to discover the source of the leaked information from its own employees before attempting to get the information from the service provider. Apple has decided not to appeal this outcome to the California Supreme Court.
The outcome of H.B. Fuller v. John Doe may clarify what test courts should apply to determine the rights of companies who have become victim to damaging Web postings by anonymous authors. It will undoubtedly require some balancing of the constitutional rights of free speech and privacy, and the public interest in the free flow of ideas against a company’s right to protect itself against theft of sensitive information and subsequent damage to its competitive position. In the interim, it is more important than ever for every company to take prudent steps to protect its confidential and proprietary information through clear Electronic Resource Policies, written confidentiality agreements with employees, and controls to protect and monitor proprietary information in electronic form.
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