Opinion

Alison Frankel

California finds ‘right to privacy’ for anonymous online commenters

By Alison Frankel
May 16, 2014

The big headlines this week on privacy and the Internet were about a ruling from the European Union’s highest court, which, as you know, held that Internet search companies must respect a “right to be forgotten.” The EU decision is a money pit for Google and its ilk, which now have to figure out how to respond to people’s requests that search engines disable links to purportedly irrelevant information about them, even if the information is otherwise accurate and publicly accessible. First Amendment advocates in the United States lamented the EU’s decision as an incursion on the public’s access to perfectly legitimate information. I’m with them on that.

In California, by contrast, an intermediate appeals court has just found that privacy and free speech on the Internet actually operate in tandem, not in tension. And while the EU decision involved the privacy rights of those who are the subject of free speech, the California case flipped the inquiry to consider the rights of the speaker. On Wednesday, the Court of Appeal for the Second Appellate District, in Los Angeles, ruled that anonymous online comments are protected by the California state constitution’s right to privacy. The decision reversed a trial court order that the online news site Digital Music News must turn over computer records to the parent company of the digital music sharing site Grooveshark to enable Grooveshark to identify an anonymous commenter who claimed to be an employee.

The anonymous poster, wrote Judge Victoria Chaney for a panel that also included Judges Frances Rothschild and Jeffrey Johnson, “has done nothing more than provide commentary about an ongoing public dispute in a forum that could hardly be more obscure — the busy online comments section of a digital trade newspaper,” Chaney wrote. “Such commentary has become ubiquitous on the Internet and is widely perceived to carry no indicium of reliability and little weight. We will not lightly lend the subpoena power of the courts to prove, in essence, that Someone Is Wrong On The Internet.”

That’s a powerful exhortation, which is one reason the ruling should carry weight in the dozen or so other states that also specify a right to privacy in their constitutions, said Marc Rotenberg of the Electronic Privacy Information Center. Rotenberg told me that the state constitutional right to privacy may even turn out to be stronger protection than the First Amendment for online sites arguing to shield the identity of anonymous commenters. The First Amendment has until now been the primary justification for anonymous online speech, with courts generally applying some variation of the balancing test first articulated by a New Jersey appeals court in the 2001 case Dendrite v. Doe.

In the Digital Music case, the trial judge, Richard Stone, had ruled that the anonymous commenter wasn’t entitled to free speech protection under the First Amendment because Grooveshark made a prima facie showing that his or her comments were libelous. The posts came in the context of long-running litigation between UMG Recordings and Grooveshark’s parent, Escape Media Group, which UMG accused of infringing copyrights on its recordings. As part of its coverage of Grooveshark’s copyright compliance, Digital Music reported on an exchange of emails between a Grooveshark executive and a member of the band King Crimson who complained about Grooveshark supposedly hosting pirated recordings.

Two anonymous comments on Digital Music’s story purported to be from a Grooveshark employee, who claimed that the site routinely disregarded takedown requests from copyright owners. “It is policy to put albums on ‘backup’, when they have to be taken down due to a (copyright claim), to chill things out with the labels and what not. The albums are not deleted, if that’s what you guys think,” the poster said in one.

Grooveshark’s parent subpoenaed Digital Music to find out the commenter’s identity, arguing that it needed the information to defend itself against UMG’s claims. Digital Music, represented by the Public Citizen Litigation Group and McKenna Long & Aldridge, countered with the First Amendment and California’s shield for journalists’ anonymous sources. When those arguments failed at the trial court, Digital Music told the state appeals court that it’s dangerous precedent to order the forensic examination of journalists’ computers when they’re merely third parties in a civil dispute. (In response, Grooveshark’s lawyers at Rosenberg & Giger and McPherson Rane derided Digital Music for dropping its constitutional argument and overstating the effect of the trial court decision.)

It was the state appeals court, rather than Digital Music or Grooveshark, that homed in on the California constitution’s right to privacy, in an order last January requesting letter briefing from both sides on that issue. At the oral argument in April, said Digital Music counsel Paul Alan Levy of Public Citizen, it became clear that Judge Chaney, in particular, was focused on the anonymous commenter’s privacy rights. (Grooveshark counsel John Rosenberg didn’t return my call.)

The appeals court said first of all that Grooveshark didn’t need to know the anonymous poster’s identity to defend itself or prosecute its counterclaims. And even if uncovering the commenter’s identity would actually lead to admissible evidence, the court said, his or her right to privacy weighs outweighed any benefit to Grooveshark from the exposure. The commenter has a “need for a venue from which to be heard without fear of interference or suppression,” the opinion said. “Anonymity also frees him or her from fear of retaliation, an even more compelling interest if [the commenter] truly is an Escape employee, as represented, because exposure could endanger not only his or her privacy but also livelihood.”

Levy, who wrote about the decision at the Consumer Law and Policy Blog, told me he still regards the First Amendment as the strongest shield for anonymous online comment, but that going forward, the right of privacy (which is implied in the U.S. Constitution) will be another indispensable argument.

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