Copyright Law

Krinsky v. Doe 6: New Decision from California Provides Strong Protection for Anonymous Speech

By Sam Bayard

A California appellate court issued a new anonymity decision yesterday in Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008). (For background on the facts of the case, see the CMLP database entry, Krinsky v. Doe 6.) In line with the recent trend towards increased protection for anonymous speech online, the California court came out with a test that puts a significant evidentiary burden on a plaintiff before allowing disclosure of an anonymous Internet speaker's identity.

The court explicitly rejected the lenient "good faith" standard applied in In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000), indicating that this test "offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection." Interestingly, however, the court also declined to follow Doe v. Cahill, 884 A.2d 451 (Del. 2005), arguing that the "summary judgment" terminology used in that case is "unnecessary and potentially confusing."

Nevertheless, the Krinksy test functions a lot like the Cahill test, with different language used to describe what's going on. Krinsky requires a plaintiff to make a "prima facie showing" that he or she has a valid legal claim against the anonymous speaker before allowing disclosure of the speaker's identity. The court made it clear that the prima facie showing required Krinsky to bring forward evidence (not just allegations) to support each element of her claims, except for those elements that were beyond her control or dependent on the identity of the defendant. Because this test requires evidence, appears to offer the defendant the opportunity to introduce counter-arguments and evidence, and includes a softening of the test for elements outside the plaintiff's control, it's hard to pinpoint how this is different from the operative part of the Cahill test.

Applying it to the evidence before it, the court came to the wholly justified conclusion that your average bit of forum "flaming" and "juvenile name-calling" cannot reasonably be understood as stating actual facts about a person, and thus it is opinion protected by the First Amendment. The court's language is quite compelling (at least if you buy in to U.S.-style protection for speech or you're a forum troll that wants to go about your business relatively unfettered):

We likewise conclude that the language of Doe 6's post, together with the surrounding circumstances -- including the recent public attention to SFBC's practices and the entire "SFBC" message-board discussion over a two-month period -- compels the conclusion that the statements of which plaintiff complains are not actionable. Rather, they fall into the category of crude, satirical hyperbole which, while reflecting the immaturity of the speaker, constitute protected opinion under the First Amendment. It hardly need be said that this conclusion should not be interpreted to condone Doe 6's rude and childish posts; indeed, his intemperate, insulting, and often disgusting remarks understandably offended plaintiff and possibly many other readers. Nevertheless, "the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection."

Aren't you just dying to know what Doe 6 (aka "Senor_Pinche_Wey") actually said? Well, I'm not going to get into that. If you're too lazy to wade through the court opinion, Ars Technica has the juicy details.

Full post as published by Citizen Media Law Project on February 07, 2008 (boomark / email).