To Speak or Not to Speak: Developing Legal Standards for Anonymous Speech on the Internet

This paper explores recent developments in the regulation of Internet speech, in specific, injurious or defamatory speech and the impact such speech has on the rights of anonymous speakers to remain anonymous as opposed to having their identity revealed to plaintiffs or other third parties. The paper proceeds in four sections. First, a brief history of the legal attempts to regulate defamatory Internet speech in the United States is presented. As discussed below this regulation has altered the traditional legal paradigm of responsibility and as a result creates potential problems for the future of anonymous speech on the Internet. As a result plaintiffs are no longer pursuing litigation against service providers but taking their dispute directly to the anonymous speaker. Second, several cases have arisen in the United States where plaintiffs have requested the identity of the anonymous Internet speaker be revealed. These cases are surveyed. Third, the cases are analyzed in order to determine the factors that courts require to be present before the identity of an anonymous speaker will be revealed. The release is typically accomplished by the enforcement of a discovery subpoena issued by the moving party. The factors courts have used are as follows: jurisdiction, good faith (both internal and external), necessity (basic and sometimes absolute), and at times proprietary interest. Finally, these factors are applied in three scenarios—e-commerce, education, and employment—to guide institutions when adopting policies that regulate when the identity of an anonymous speaker—a customer, a student or an employee—would be released as part of an internal initiative, but would nonetheless be consistent with developing legal standards.