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Paul McMann v. John Doe

460 F.Supp.2d 259, Civ. Act. No. 06-11825-JLT (D. Mass., October 31, 2006)

Federal Court denies plaintiff's ex parte application for leave to serve subpoenas to obtain the identity of an anonymous speaker who allegedly posted defamatory statements about plaintiff online.  Plaintiff sought to serve such subpoenas on both the domain registrar Go Daddy and Domains By Proxy.  The Federal Court dismissed the action, holding it lacked subject matter jurisdiction over this suit because it only advanced state law claims against a John Doe defendant who's residence was unknown.  The Court also denied plaintiff's application for discovery as to the identity of the anonymous speaker, as his statements about plaintiff were non-actionable statements of opinion, insufficient to give rise to a claim for defamation.

Plaintiff Paul McMann is a real estate developer who resides in Massachusetts.  An anonymous individual created a website at the domain paulmcmann.com which featured a photograph of plaintiff, and advised readers that McMann "turned lives upside down," and to "be afraid, very afraid" of him.  The paulmacmann.com domain was registered to Domains By Proxy, which acts as a domain registrant for domain owners who do not wish to be identified.  The domain at issue was registered with the domain registrar Go Daddy. 

Claiming these statements were defamatory, plaintiff asked both entities to voluntary identify the individual on whose behalf the domain had been registered.  When they refused, plaintiff commenced this action in Massachusetts Federal Court against the individual who created the offending website.  As plaintiff did not know his identify, he sued this individual as John Doe.  In his complaint, plaintiff advanced state law claims of defamation and invasion of privacy.

Plaintiff moved ex parte for leave to serve a subpoena on the non-parties Go Daddy and Domains By Proxy to obtain the identity of the anonymous individual on whose behalf the paulmcmann.com domain had been registered.

The Federal Court denied plaintiff's application, holding it lacked subject matter jurisdiction to hear this dispute.  Subject matter jurisdiction in federal court can be premised either on a dispute which presents a federal question or claim, or on the diversity of citizenship of the parties to the proceeding.  Federal question jurisdiction was not present, as the complaint had only advanced claims under state law.  Similarly, diversity was lacking, given the uncertain residence of the John Doe defendant.  The Court elected to follow those courts that had held that the possibility that John Doe resided in Massachusetts, the same state as the plaintiff, destroyed diversity.  Notably, other courts had reached the opposite conclusion.  Said the Court:

[T]here is a very troubling possibility that the court order John Doe unmasked, simply to discover that John Doe is a Massachusetts resident, that there was no diversity, and that the court acted without subject matter jurisdiction.  Because of this risk that jurisdictional authority could suddenly disappear, many courts are wary of entertaining John Doe diversity suits.

The Court, as an alternative ground for its holding, held that plaintiff's inability to state a valid claim for relief against John Doe barred him from obtaining the discovery he sought.  The Court reviewed decisions such as Best Western and Cahill which propounded different prerequisites to obtain discovery of the identity of an anonymous online speaker.  The Court, however, did not set forth the showing it would require to obtain such discovery. Instead, it held that, at a minimum, plaintiff must state a valid claim for relief to obtain such discovery, a hurdle McMann had not met here.

McMann asserted state law claims of invasion of privacy.  The Court held that the website's publication of information pertaining to McMann's business activities, or his photograph, was non-actionable, and merely the equivalent of publishing information concerning McMann's public activities.

Publishing a description of business activity, describing a posting made on a public message board, or distributing a publicly available portrait photograph all resemble publishing appearances made in a public place.  These activities do not impinge th[e] right of privacy.

Nor did John Doe's use of plaintiff's photograph violate that branch of the privacy laws that protect an individual against the use of his likeness by another without consent for commercial gain.  Here, the website at issue was not operated to profit on its association with the plaintiff.

Finally, the Court held that McMann's defamation claims failed because the statements at issue - that plaintiff had allegedly "turned lives upside down" or warned users to "be afraid," very afraid" - were non-actionable statements of opinion that did not imply that they rested on "a factual basis."  Said the Court:

The webpage does indicate that specific facts are forthcoming that support John Doe's assertions.  But, this court concludes that the accusation that one has "turned lives upside down," and the suggestion to "be afraid", are bland, vague, and subjective and do not constitute defamation.  A person can feel that their life is turned upside down by all manner of activities.  The statement is so vague, that attempting to judge its falsity, as this court would be required to do at summary judgment, would be an exercise in speculation.  Plaintiff's affidavit merely contains an assertion that the statement is not true.  Bare assertions in an affidavit are not adequate to defeat summary judgment.  If John Doe posts further specific statements on the website, which Plaintiff could rebut with detailed factual affidavits, this court would consider granting leave to subpoena (if it had jurisdiction).  On the present record, however, this court concludes that Plaintiff has not met the evidentiary burden required to remove John Doe's constitutional interest in his anonymity.

Interestingly, in dicta, the Court questioned the ability of Domains By Proxy to rely on the immunity afforded by the Communication Decency Act to the providers of interactive computer services for their involvement in the online publication of defamatory statements authored by third parties.  Noted the Court:

In the present case, it is unclear whether Domains by Proxy, Inc., as a party arguably complicit in the allegedly defamatory speech by virtue of its registration assistance, would qualify for protection as an Internet Service Provider.  Such an issue, however, must be addressed in a case where Domains by Proxy, Inc. is sued and has an opportunity to present arguments.

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