SSTLR

ABSTRACT

Falsely alleging that one has committed a crime of moral turpitude, carries a loathsome or contagious disease, or lacks integrity or ability in her trade or profession are widely recognized by lawyers and journalists as classic examples of per se defamation. Imagine, for example, two female law students walking into your office, alleging that twenty-eight different people had published statements that they carried various venereal diseases, had effectively bought their way into law school despite poor LSAT scores, and had engaged in sexual relationships with the law school’s deans. In theory, so long as these statements are false, this class of per se defamation suit seems at first blush easily won. That is until you ask who their alleged defamers are. They reply: “Pauliewalnuts,” “neoprag,” “Remember when I said I would kill you last? I Lied.,” “The Ayatollah of Rock-n-Rollah,” “DRACULA,” “Sleazy Z . . .”. Welcome to defamation in the Internet age.

The preceding scenario is in fact the subject of the recently filed suit Doe v. Ciolli. In their complaint, the two Jane Doe defendants – students at Yale Law School – allege that twenty eight individuals, only identifiable by their online pseudonyms, tarnished their “character, intelligence, appearance and sexual lives” by posting a wide range of allegedly defamatory comments on the message boards of AutoAdmit.com. As a result of the online smear, Doe I alleges that after sixteen interviews with law firms for summer employment she received no offers. Anthony Ciolli, a law student and former director of AutoAdmit, was the only named defendant in the original complaint.6 In the amended complaint, Ciolli was dropped from the suit, while eleven additional anonymous defendants were added. While the AutoAdmit lawsuit has provided plenty of fodder for legal bloggers, it also highlights an increasingly complex issue in online tort jurisprudence: How does one go beyond the pseudonym to obtain the identity of her alleged online defamer?

As the Internet expands, so does the amount of legal commentary on this issue. By now, attorneys familiar with online tort issues are well aware that section 230(c) of the Communications Decency Act (hereinafter “CDA”) – commonly known as the “Good Samaritan” provision – insulates Internet Service Providers (hereinafter “ISPs”) from civil liability for carrying defamatory or otherwise tortious material on their services. Therefore, in order for a defamed plaintiff to have her day in court, she must get a subpoena ordering the ISP to reveal the identity of her anonymous online defamer. In light of First Amendment concerns, courts to date have refused to establish a uniform test to be applied when deciding whether a defamation claim has enough merit to justify a subpoena to the ISP. This, foreseeably, has caused problems in litigation. In the best-case scenario, defamed plaintiffs seek subpoenas blindly, unaware of which standard the court will apply. In the worst-case scenario, plaintiffs are left with no legal recourse at all when courts struggling to determine a standard fail to act expeditiously, since many ISPs only store the IP addresses used to identify John Doe defamers for a limited period.
This note argues that section 230(c) of the CDA should be amended by codifying the summary judgment standard for ISPs announced in Doe v. Cahill by the Delaware Supreme Court. Indeed, once an ISP subpoena standard has been codified – as the Digital Millennium Copyright Act (hereinafter “DMCA”) has done in section 512(h) for copyright infringement actions – courts, plaintiffs, and ISPs will be able to better predict when a John Doe’s identity is discoverable. Moreover, codifying a subpoena standard, rather than expanding the liability of ISPs, will make the “Good Samaritan” provision what it purports it to be: protective of First Amendment interests and ISPs, yet still accommodating to meritorious defamation claims. As currently enacted, the latter simply is not true.

Part I of this note will summarize the right to free speech under the First Amendment, the tort of defamation, and how the right to speak anonymously has uniquely affected Internet-based defamation claims. Part II will examine the pertinent CDA provision, section 230, and its legislative history. Part III will provide an overview of recent John Doe defamation suits and the tests courts have applied in determining whether to subpoena ISPs for the identities of John Doe defendants. Part III of this note will then examine and critique additional solutions to this problem proposed by commentators. In Part IV, I will argue that section 230 of the CDA should be amended by codifying the summary judgment standard announced in Cahill. Part IV will then suggest statutory language for the proposed section 230 amendment, borrowing in part from the subpoena language enacted by Congress in section 512(h) of the DMCA. Part V will conclude this note.

NOTE: Footnotes in this abstract were omitted.

[download PDF]