BURNHAM BROWN Attorneys Successfully Uphold Privacy Rights of Anonymous Electronic Bulletin Board Poster

Eric R. Haas and Patrick M. Callahan recently successfully defended a client's right to his (or her) anonymity in posting comments on an Internet Service Provider's public bulletin board.

A number of individuals posted comments on a bulletin board related to a publicly traded company.  The bulletin board was set up and maintained by Sunnyvale, California-based Yahoo!, Inc.  All posters to the bulletin board used screen names, and the identities of the commenters were not revealed.  Some of the comments were highly critical of the officers of the company. One of the executives filed suit against one poster who posted allegedly defamatory statements about the executive. Since plaintiff did not know the poster's identity, he was sued as "John Doe."  The plaintiff served a subpoena on Yahoo! and successfully obtained the identity of "John Doe" through that means.  Months later plaintiff served another subpoena on Yahoo! seeking the identities of ten other posters, none of whom was accused of any wrongdoing.  None of the ten whose identities were sought by the plaintiff were parties to the suit, and none was accused of making defamatory statements.

One of the ten asked Haas and Callahan to represent him (or her), and objected to his (or her) personal information being released by Yahoo!  After initially failing to convince the plaintiff that he did not have the right to know who the client was, Callahan and Haas moved for a protective order to block Yahoo! from revealing information about the client, citing, among other authorities the First Amendment to the U.S. Constitution, which has been interpreted to include the right to make statements anonymously.

On the eve of the deadline for the plaintiff to file opposition to the motion plaintiff withdrew his subpoena to Yahoo! as to the client, and the client's anonymity was preserved.  Callahan and Haas learned that Yahoo! is deluged with such requests and Yahoo! leaves it to the individuals whose identity is sought to decide whether to contest the subpoenas.

August 2005