Published On: November 2, 2014Categories: Intellectual Property, Fraud

Online Defamation May Become Easier to Prosecute

Unmasking Anonymous Bloggers that Defame

In In re Trooperthe Texas Supreme Court has agreed to hear an appeal of a Texas District Court case in Houston, wherein the petitioner, The Reynolds and Reynolds Co., says it has been defamed following its $2.8 billion merger with Universal Computer Systems Inc. by anonymous bloggers. The blogs in question are hosted on Google’s blogspot system. This is likely an issue of First Amendment protection.

The law has traditionally been that anonymity is protected as part of one’s free speech. However, most courts have held that a defamer cannot evade liability by hiding behind the First Amendment protections of one’s anonymity. So, if a plaintiff can make a prima facie showing that it has evidence to support a defamation claim (i.e., that it can facially meet the standards for summary judgment), then the anonymity of the blogger will be vitiated.

In In re Does, _ S.W.3d_, 2011 WL 1447544 (Texas, April 15, 2011), the plaintiff was defamed by anonymous online bloggers whose websites were hosted on “Blogspot,” which is owned and hosted by Google. The plaintiff attempted to use Rule 202 to subpoena the identities of the bloggers for deposition. The bloggers intervened as John Does to protect their anonymity. The supreme court held that Texas Rule of civil procedure 202 did not permit the subpoena. The court’s ruling was only a quasi-First Amendment ruling, focusing more on the failure to meet the threshold requirements for seeking discovery generally. It held that there is “cause for concern about insufficient judicial attention to petitions to take presuit discovery” and that “judges should maintain an active oversight role to ensure that [such discovery is] not misused.”

Thus, the question here will be whether in In re Trooper, the Supreme Court will finally address the First Amendment question whether anonymous bloggers who can be shown to have facially defamed the plaintiff can be unmasked.