In re Subpoena Duces Tecum to America Online

52 Va. Cir. 26 ( Va. Cir. 2000)

The Plaintiff in this case was an Anonymous Publicly Traded Company that got the Court to issue a subpoena to America Online to learn the identity of subscribers in order to name them as defendants for allegedly defamatory comments they made in a stock chatroom. AOL filed a motion to quash the subpoena. The Court stated:

. . . the issue can be framed as whether a state's  interest in protecting its citizens against potentially actionable communications on the Internet is sufficient to outweigh the right to anonymously speak on this ever-expanding medium. There appear to be no published opinions addressing this issue either in the Commonwealth of Virginia or any of its sister states. . . .

This Court . . . holds that the right to communicate anonymously on the Internet falls within the scope of the First Amendment’s protections. …As AOL conceded at oral argument, however, the right to speak anonymously is not absolute. In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.

. . . before a court abridges the First Amendment right of a person to communicate anonymously on the Internet, a showing, sufficient to enable that court to determine that a true, rather than perceived, cause of action may exist, must be made. . .

this Court holds that, when a subpoena is . . .a court should only order a non-party, Internet service provider to provide information concerning the identity of a subscriber (1) when the court is satisfied by the pleadings or evidence supplied to that court (2) that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed and (3) the subpoenaed identity information is centrally needed to advance that claim.

 

The "good faith" standard used in this decision is the least protective of several standards that various Courts have used to protect the free speech rights of anonymous defendants. The trend has been for more and more courts to adopt more rigorous standards to protect anonymous free speech. Notably, Dendrite International v. John Doe and Doe v. Cahill have adapted more rigorous summary judgment standards. When evaluating what standard most courts are likely to adopt, one should note that the good faith standard was promulgated by a low level trial court in Virginia, whereas Dendrite was decided in an intermediate level appellate New Jersey Court and Cahill was decided by the highest level Delaware Court. Columbia Insurance v. Seecandy and Sony Music v. Doe both required higher standards than the good faith standard, and both these cases were decided in Federal District (trial) courts.

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