Façonnable USA Persuades Colorado Judge to Use Weak Standard for Identifying Internet Critics

by Paul Alan Levy

Over the past several years, we have described the developing law that offers protection for anonymous Internet posters by requiring notice to the poster and the presentation of evidence supporting claims of wrongdoing.  We argue for this rule because it encourages participation in public discourse while ensuring that a plaintiff who has suffered a serious wrong will have a way to vindicate its rights.

However, in a recent decision, a federal magistrate judge in Colorado turned his back on ten years of precedent protecting anonymous Internet speech to hold that a Wikipedia user who inserted strong criticisms of a fashion company could be identified based only on the unsworn say-so of a company vice-president who claimed vaguely that the Wikipedia entries were false.

The case arose out of the addition of critical material to Wikipedia pages about Façonnable USA and the M1 Group, a Lebanese conglomerate that owns Façonnable.  M1 Group in turn, is owned by Najib Mikati, who recently became prime minister of Lebanon as the head of an alliance including Hezbollah.  Hezbollah, in turn, has been cited by the United States as a terrorist organization.

Anonymous individuals added two sentences to the Wikipedia pages asserting that the M1 Group supports Hezbollah and warning consumers to consider whether their purchases of Façonnable items effectively provide support for terrorism.  The Wikipedia pages themselves have been taken off line as unduly promotional but a version of one of the pages was attached to the complaint and can be seen here.

Not content with its ability to remove the criticisms from the Wikipedia pages, Façonnable brought suit against the anonymous posters in the United States District Court for the District of Colorado, a forum apparently chosen because Doe’s IP address reflected her use of Colorado-based ISP Skybeam.  Façonnable alleged a claim for defamation, but to justify bringing suit in federal court, Façonnable also claimed that the use of its business name violated its trademark rights protected by the Lanham Act.  The complaint did not specify whether Façonnable was charging infringement or false advertising (both theories seem absurd).

In seeking leave to take early discovery to identify Doe, Façonnable made no mention of the well-established “Dendrite” rule requiring notice and proof of wrongdoing.  The Magistrate Judge assigned to the case issued an order allowing a subpoena to Skybeam and later admitted that, in issuing his order, he had been unaware of the Dendrite line of cases.

Skybeam objected to the subpoena and moved to quash, but despite the fact that Façonnable had obtained the magistrate judge’s order by hiding the law from him, the magistrate judge decided to stick with his original ruling instead of following the other courts that have addressed this issue.  He decided that it is enough that the plaintiff's complaint has alleged “plausible” claims.  And he decided that notice is only to be provided to the anonymous speaker if that speaker has a pre-existing right to notice, because the ISP’s terms of service guarantee such notice.

We have now undertaken to represent Skybeam in seeking review of this disappointing decision.  Our brief explains why most courts have followed the Dendrite approach, and warns of the danger to free speech and the marketplace of ideas if it is enough for a plaintiff to file a conclusory complaint without evidence of wrongdoing.  We also point out that all ISPs include general warnings in their Terms of Service that unlawful speech is forbidden and that the ISP will comply with lawful process, and that if such terms are enough to forfeit users’ free speech rights, then all the caselaw that had built up over the past ten years following the Dendrite approach would be wrong. 

The order to disclose identifying information has now been stayed so that the district judge can take a deliberate look at the merits of Skybeam’s objections to the magistrate judge’s ruling.  At the same time, this ruling might serve as a reminder to ISPs of the possible value of adopting the privacy policy recommended by the Cyberslapp Coalition, which includes a specific commitment to provide notice of subpoenas unless prohibited by court order or applicable law.

UPDATE

Rather than respond to our objections, Façonnable dismissed the suit, and the ruling was vacated under Munsingwear because the issue became moot before the District Judge could address the objections.

Comments

[Gregory Kohs]

So, you consider libel an important and protected part of the "marketplace of ideas"? I wonder what sort of things I could dig up and distort about Paul Alan Levy. I would hope that Public Citizen would then protect my right to say these defamatory things anonymously, right Paul?