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In re Does 1-10

No. 06-07-00123-CV (Texas Crt. of Appeals, December 12, 2007)

To Obtain Disclosure Of Identity Of Anonymous Poster, Plaintiff Must Submit Evidence Of Validity Of Defamation Claim Sufficient To Survive Summary Judgment

Following the decision of the Delaware Supreme Court in John Doe No. 1 v. Cahill, the Texas Court of Appeals holds that to obtain the identity of an anonymous individual who allegedly posted defamatory statements online, a plaintiff must submit evidence of the validity of his defamation claim sufficient to survive a motion for summary judgment.  This, held the Court, requires the plaintiff to submit sufficient evidence of each element of his claim that is within his control – he is not required, however, before discovery of the speaker’s identity, to demonstrate that the speaker acted with ‘actual malice’, if such is an element of the defamation claim at issue.

Because the trial court directed the disclosure of the anonymous speaker’s identity without first requiring such a showing, the Court of Appeals conditionally granted the defendant’s application for a writ of mandamus, and remanded the case for further consideration in light of the Court’s opinion.

The Court further held that the Cable Communications Policy Act, 47 U.S.C.A. Section 551(2)(B), does not provide an independent basis for obtaining such disclosure.  While the statute does apply to requests in civil actions brought by private parties seeking to pursue defamation claims, the Court held it only permitted such disclosure pursuant to a properly issued ‘court order.’  This, in Texas, required submission of evidence sufficient to establish a prima facie case, as stated above.

Hospital Seeks Identity Of Anonymous Blogger Making Allegedly Defamatory Statements

A hospital upset with a blog that allegedly contained defamatory statements that  disparaged and criticized the hospital and its employees, commenced this action against the anonymous posters who authored these statements.  In addition to defamation claims, the suit further alleged that the blog impermissibly disclosed confidential patient information.

To obtain the identity of the anonymous posters, the Hospital moved pursuant to 47 U.S.C.A. Section 551, the Cable Communications Policy Act (“CCPA”) for a subpoena compelling an internet service provider to disclose the identity of the anonymous speakers.  Without setting forth the showing the Hospital needed to meet to obtain such relief, or applying Texas discovery rules, the lower court directed that the ISP disclose the posters’ identities.

On appeal, the Court of Appeals held that the lower court’s failure to apply applicable Texas discovery rules to plaintiff’s request was error which required the matter be remanded for further consideration.

Cable Communications Policy Act Does Not, By Itself, Authorize Disclosure

In reaching this result, the Court of Appeals held that the CCPA did not – by itself -  authorize the issuance of a subpoena to obtain disclosure of a cable subscriber by a private party in a defamation action.  Section 551(2)(B)  provides that “a cable operator may disclose [personally identifiable information concerning any subscriber] if the disclosure is – (b) subject to subsection h of this section, made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed …”.  While the CCPA permitted an ISP to disclose such information in response to a duly issued ‘court order,’ it did not set forth the procedural mechanism that must be followed to obtain such an order.  Said the Court of Appeals:

We will follow … the majority … and hold that the statute provides a sanctuary for cable operators who disclose personal information to private parties pursuant to a valid court order without imposing the requirements found in subsection h.  However, we also find that the federal statute is not a procedural vehicle for obtaining such a court order.  That must be accomplished through some procedural device, either state or federal, depending on the forum of the case.  In Texas state courts, the rules of discovery provide ample methods for obtaining information from third parties.  In this case, the trial court ordered the release of this private information without regard to any procedural rule that would authorize such release. 

The court held that an application for the disclosure of the identity of an anonymous speaker required the court to balance two competing interests.  On the one hand are the First Amendment protections for anonymous speech.  “[A]n authors decision to remain anonymous … is an aspect of the freedom of speech protected by the First Amendment.  The protections of the First Amendment extend to the Internet.”  On the other hand are the rights of those aggrieved by defamatory speech to seek redress for such wrongs.

Court Adopts Test Enunciated By Delaware Supreme Court In Cahill

After surveying the cases in this area, the Court of Appeals held the proper balance of these competing interests was struck by the Delaware Supreme Court in John Doe No. 1 v. Cahill.  There, the Court held that to obtain such disclosure, a plaintiff must submit evidence of the validity of his defamation claim sufficient to survive a motion for summary judgment.  This does not, however, require the plaintiff to submit evidence that establishes that the anonymous defendant acted with actual malice in those cases where that is a required element of the plaintiff’s defamation claim.  Rather, prior to the disclosure of the anonymous poster’s identity, the plaintiff must only submit evidence as to those elements of a defamation claim within his control.  Said the Court:

We find ourselves more in alignment with the formulations set out in Cahill, 884 A.2d at 458-61.  The court in Cahill described the test as:  “[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.”  Cahill, 884 A.2d at 460.   This standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to create issues that would preclude summary judgment. …  “[I]f the standard for permitting discovery of the John Does Defendants’ identities required only good faith or the ability to survive a motion to dismiss … a good faith allegation of wrongdoing, devoid of factual detail, would suffice. … More is needed before a defendant’s First Amendment rights may be eliminated.  The Court must examine facts and evidence before concluding that a defendant’s constitutional rights must surrender to a plaintiff’s discovery needs.  The summary judgment standard ensures that the Court receives such facts and evidence.”  We agree with this analysis.

Because the lower court had not applied such a standard, a conditional writ of mandamus issued, and the case remanded to the lower court to vacate its prior order granting discovery, and determine whether plaintiff had submitted evidence sufficient to obtain the speakers identity under the ‘summary judgment” standard set forth above.

The full text of the court's decision can be found on the website of the Court of Appeals of the Sixth Appellate District of Texas at Texarkana.

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