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Free speech wins out in online anonymous criticism case

Posted on 02/01/2019 | in 杭州夜生活 | by

What happens when you’re upset about a business dealing with Massachusetts real estate developer Paul McMann? One anonymous critic put up a web site about the man, inviting other people to share their own stories. McMann wasn’t real pleased about this development, and he filed suit against the anonymous proprietor of the site and issued subpoenas to learn his (or her) true identity. An Arizona judge has just ruled that McMann is not able to use the compulsory discovery process to unmask his accuser unless he can show that his anonymous opponent actually committed a crime.HangZhou Night Net

The saga began back in Massachusetts, where McMann first filed suit agaist his detractor in early October. In his complaint, a copy of which was seen by Ars Technica, McMann told the court that he was being defamed. He specifically pointed to statements on the web site which said that he “turned lives upside down” and that people should “be afraid. Be very afraid” of McMann. He also claimed that the site was damaging his career in real estate; one potential lender and another potential business partner both told McMann that they were not interested in working with him after seeing the site.

At the end of the month, Judge Joseph Tauro tossed the case. He pointed out that the two statements cited by McMann could hardly be considered defamation because “these two statements are not provable as true or false, but rather are opinions.” The judge recognized that such cases could easily be used to identify critics, even if such critics had done nothing illegal. He also dismissed McMann’s claim that a photo of McMann published on the website was a violation of McMann’s personal copyright (the photo has apparently been replaced by the picture of a grinning jack-o’-lantern).

A week later, McMann refiled his suit in Arizona. The nonprofit group Public Citizen helped in the defense of the Arizona case, and they claim that McMann made no mention of the Massachusetts case. The state of Arizona was a strange choice, as McMann did not live or do business there and had no reason to think his anonymous critic did, either. It was apparently chosen because the paulmcmann.com site was registered with Domains by Proxy, which is based there. McMann’s attempts to learn John Doe’s identity from Domains by Proxy were unsuccessful; the company told him that he needed a court order.

On January 18, Judge Christopher Whitten sided with Judge Tauro and dismissed the case. Whitten ruled that “the Plaintiff must show that its claim would survive a Motion for Summary Judgment before being entitled to discover the identity of an anonymous speaker through any compulsory discovery process.” In other words, McMann had to provide solid, upfront evidence of illegal behavior.

“This victory is a win for the First Amendment right of free speech on the Internet,” said Public Citizen attorney Greg Beck. “The Court correctly recognized that people’s right to speak anonymously online should not be violated without good cause.”

The two decisions reinforce a set of recent rulings on Internet anonymity. At the end of 2005, for instance, the Delaware Supreme Court ruled that anonymous bloggers should receive strong protection from exposure, and also ruled that a plaintiff would have to pass the “summary judgment” test before a subpoena would be authorized. But those who have been criticized find it hard to resist trying their luck in the courts, even though many such cases turn out to reveal nothing more interesting than the hourly rate charged by the plaintiff’s lawyer.

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