This question is becoming increasingly important with the proliferation of blogs and Web postings for corporate criticism -- from wakeupwalmart.com to www.googlereallysucks.blogspot.com. And whether companies and their in-house counsel pursue actions against bloggers in these cases involves more than the usual assessment of opportunity costs and the pure business interests of the company. There are limits to the rights of companies to compel an Internet Service Provider (ISP) to reveal the name of its customer, particularly when the ISP customer wishes to remain anonymous. This article explores what the courts are requiring companies to show before they will call for an ISP to divulge a blogger's identity and provides some guidelines in evaluating whether to pursue such a strategy.
TYPICAL FACT PATTERN
Usually, these disputes arise from an anonymous Web posting or Web log (blog) including damaging comments about a company. The company, in an effort to stem the ill effects of the comments, particularly if they are false, sues the ISP to determine the blogger's identity. The ISP declines to identify the blogger either because of an internal policy or a demand or expectation of privacy by the blogger.
Indeed, contracts between ISP and bloggers typically include language obligating the ISP to make certain efforts to maintain the confidentiality of the blogger's identity. Under federal law, an ISP is required to notify a blogger if there has been a request for his identity. A court is then asked to consider compelling the ISP to unmask the blogger, either because an ISP files suit asking for such relief or a blogger files a John Doe suit to maintain his anonyminity.
In attempting to maintain their anonymity, bloggers have claimed protection under the First Amendment. There is a rich history in the United States of protecting anonymous free speech. Long before the days of the Web and blogging, Alexander Hamilton and Thomas Jefferson, among many others, frequently used pseudonyms in authoring various papers assailing their political opponents. More recently, the Supreme Court of the United States in Talley v. California, 362 U.S. 60 (1960) struck down a local ordinance that required the distributor of handbills to disclose the author's identity.
Under what circumstances can a company learn the identity of an anonymous blogger who disparages the company or its products or services, recognizing there is a First Amendment right to anonymous free speech? The rulings are conflicting.
If identifying an anonymous blogger becomes necessary, investigation is a required prerequisite to determine the nature of the postings, and to place them in context of your business. For example, consider the following:
Who would have access to the information posted?
When would the information have been available to the blogger?
Can the company pinpoint potential targets because of the nature, content and accuracy/noticeable inaccuracies of the information disclosed, use of time sensitive information, or other specifically unique aspects that would "fingerprint" the information and allow the company to narrow the focus of its search for the author?