Friday, December 21, 2007

Blogger Anonymity

Any number of courts in recent times have opined on the question whether ISPs should be compelled to disclose the identity of anonymous bloggers. Quite recently, the Court of Appeals for the Sixth Appellate District of Texas has waded into these waters in In re: Does, 06-07-00123-cv (6th App. Dist. Tex., Dec. 12, 2007). The Texas Court found itself in agreement with the 2005 opinion of the Delaware Supreme Court in Doe v. Cahill, 884 A.2d 451 (Del. 2005), which described the test as: "[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process, he must support his defamation claim with facts sufficient to defeat a summary judgment motion." 884 A.2d at 460. See also Best W. International v. Doe, 2006 WL 2091695 (D. Ariz., July 25, 2006).

The Texas Court also addressed the argument of the hospital that had sued that the Court was empowered to issue such an order under the Cable Communications Policy Act of 1984 (CCPA), 47 U.S.C. Section 551. The Texas Court held that the CCPA provides a sanctuary for cable operators who disclose personal information to private parties pursuant to a court order, but does not provide, by this federal statute, a procedural vehicle for obtaining such a court order. Instead, the plaintiff must use some procedural device, like the Texas rules of discovery, not the CCPA.

Much has been written about anonymous blogging, and I will continue to write about it with some frequency. See Glenn Harlan Reynolds, Libel In The Blogosphere: Some Preliminary Thoughts, 84 Wash. U. L. Rev. 1157 (2006); Daniel J. Solove, A Tale Of Two Bloggers: Free Speech And Privacy In The Blogosphere, 84 Wash. U. L. Rev. 1195 (2006).

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