Texas May Compel Google to Give Up Blogger
The Texas Supreme Court said Aug. 23 that it will hear oral argument over whether Google must give up the identity of a blogger who anonymously criticized a company that may be his employer. The company wants to sue the blogger for defamation.
Years of Anonymous Blogging
After The Reynolds and Reynolds Co., which creates computer systems for car retailers, was acquired by another company in 2006, it lost customers, laid off employees and suffered low employee morale.
An anonymous blogger named “Trooper” in 2007 started a blog, hosted by Google, that criticized Reynolds, comparing the new CEO to Bernie Madoff and Satan, and calling him an idiot, a lunatic and a crook. Reynolds’ new CEO didn’t take kindly to that and went to court to get Google to cough up the identity of Trooper, whom management suspected of being an employee.
In 2011, the trial court agreed to force Google to reveal Trooper’s name, address, phone number, and email address, and an appeals court affirmed. While the original blog seems to have disappeared, another has taken its place. Trooper continues to resist Reynolds’s attempt to find him and has now convinced the Texas high court to rule on the matter.
He claims that forcing Google to disclose his identity would violate his free speech rights, and he also says the company hasn’t shown that it’s been defamed or that he’s violated any duty to it.
Needle in a Haystack
If he is in fact an employee, it may seem pretty amazing that he’s managed to stay anonymous for the last 5 years. But if he’s not using a company computer to post to his blog it may be very difficult for the company to identify him. “It’s like finding a needle in a haystack,” says Adrianos Facchetti, a California lawyer who specializes in defamation actions.
“Based on the nature and context of the posts, it’s probably information that no one else would have access to,” Facchetti says, and that’s why the company suspects an inside job.
While there’s no controlling U.S. Supreme Court ruling on when anonymous online speakers can be “unmasked,” some states have addressed the issue and there is a Texas appellate case that will likely figure prominently here, he adds.
That appellate case adopted a standard that is becoming more uniform among the states: A plaintiff alleging defamation against an anonymous online speaker must first present some basic evidence that he or she has a claim, explains Facchetti.
Then the plaintiff can force, usually via subpoena, an Internet service provider like Google to produce information that would help to identify the anonymous speaker. Facchetti says it’s likely that the Texas Supreme Court will adopt that standard in Trooper’s case, affirming the lower court’s decision ordering Google to comply with the subpoena.
Free Speech Balance
But even if Reynolds is successful in forcing Google to comply, that may not be the end of the story – and of anonymity – for Trooper. “There are a lot of legal protections in place for anonymous speech on the Internet,” Facchetti explains.
Google likely still has Trooper’s information, but it’s not a guarantee. Any information it does have may not be useful to Reynolds, he says. They may just have an IP address, which won’t be helpful if Trooper thought ahead and used a dynamic IP – one that is generated anew each time he logged on.
Google actually takes up for anonymous speech, according to Facchetti, who explains that when the company receives a subpoena for identifying information, it alerts the user and suggests he or she hire a lawyer. “Then they have an opportunity to block the subpoena,” he says.
After subpoenaing the ISP, Reynolds will still have to prove the bare bones of its defamation case against Trooper, who has reportedly insisted that is impossible. Reynolds on the other hand says it’s ready to show at trial court that Trooper has defamed it.
“It’s not open season on anonymous speakers,” Facchetti says. Requiring defamation plaintiffs to prove that they can show the elements of their case “balances the First Amendment interest in anonymous speech against the right not to be defamed,” he notes. “Defamation is not protected by the First Amendment.”