Copyright Law

EFF Asks Court to Protect Anonymity of Fake-Profile Creator

By Sam Bayard

Larry Dominick, the Town President of Cicero, Illinois, is seeking information from MySpace about an anonymous user who set up fake profiles for him on the social networking site. He filed a petition in Illinois state court, seeking permission to issue interrogatories and document requests to MySpace about the user's identity. Dominick, who filed the petition in his capacity as Town President, contends that he has potential legal claims for defamation and invasion of privacy, but his petition does not identify any specific defamatory statements or describe the content of the profiles in detail. MySpace has taken down the offending pages, but has otherwise stayed out of the fray. Luckily, EFF has stepped in as amicus curiae and filed an excellent brief arguing that Dominick has not met the heightened requirements demanded of plaintiffs seeking the identity of anonymous Internet speakers.

To be clear, I'm not saying that I'm in favor of creating fake online profiles or that doing so is entitled to special First Amendment protection. For the most part, creating fake profiles is silly, and it is also potentially highly destructive. (Law.com published a good article this week, discussing some of the recent cases in what is sure to become an increasingly commonplace phenomenon.) On the other hand, I can imagine such profiles being a fertile platform for engaging in parody or legitimate criticism, especially of public figures like Dominick (a point not lost on EFF in its brief).

The point is that plaintiffs, especially public officials like Dominick, cannot just waltz into court and ask for an Internet speaker's identity. If we learned anything this past year, it is that the First Amendment places robust limitations on this kind of endeavor. From Mobilisa to Essent to Krinsky and others, the courts have agreed that plaintiffs seeking the identity of anonymous speakers first must establish that they have strong legal and evidentiary bases for their claims. As EFF points out in its motion to appear as amicus curiae, courts impose these strict procedural safeguards "as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet." Dendrite Int'l v. Doe, 775 A.2d 756, 771 (N.J. App. Div. 2001).

In this case, Dominick has come nowhere near meeting the heightened standard of pleading and proof required. He doesn't even identity a single defamatory statement, much less bring forward evidence that any statement was false or caused him cognizable harm. Nor does he identify what type of "invasion of privacy" claim he believes he has. These vague allegations of wrongdoing on the part of an anonymous speaker are plainly insufficient to overcome the First Amendment interests at stake. Moreover, Dominick's decision to file the petition in his official capacity just makes matters worse. I can't think of any imaginable theory under which the town could recover -- as far as I can tell, a municipality can't sue for defamation or invasion of privacy. (Plus, it gave EFF the convenient argument that the Stored Communications Act prohibits the town from using civil discovery procedures to obtain customer information from MySpace.)

We'll be waiting with anticipation for the court's decision. Please see our database entry, Dominick v. MySpace, for updates and links to court documents.

Full post as published by Citizen Media Law Project on June 05, 2008 (boomark / email).