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January 25, 2012
Another Attempt To Unmask An Anonymous Poster
A lawsuit against media streaming company Grooveshark by music labels is fertile ground for determining whether an anonymous commentator can be unmasked, and under what circumstances media shield laws apply to protect that person’s identity from being revealed in court. In this particular case, an anonymous Grooveshark employee posted comments to Digital Music News identifying practices by the company that encouraged copyright infringement. Grooveshark was not amused and served a subpoena on the site to unmask the employee.
Digital Music News was even less amused and is resisting on the basis that media shield laws should protect these sources from disclosure. An article in paidContent suggests, and I think correctly, that this is an open question. The New York media shield law may apply depending on circumstances, including whether the identity of the employee (and further developed information flowing from that unmasking) is essential to Grooveshark’s defense. Note that Universal Music, the plaintiff, is using the disclosure as evidence against Grooveshark. I would think both sides would have an interest in developing the truth of the statement. I suppose Universal could just as easily depose various Grooveshark employees under oath about company practices. An anonymous posting could rise to the level of supporting an allegation against Grooveshark, but as iron-clad evidence? I doubt it.
It should be pretty interesting to see where this winds up as a matter of principle. Digital Music News claims it deletes its source information of posters to frustrate these types of requests. A court may still rule that the company may need to try and search its records in any event. A casual reading of commentary on the issue of anonymous posting suggests that courts balance the need for the information against First Amendment concerns, with statutory or judicial definitions of who can claim to be a journalist. Is someone who writes a letter to the editor considered a journalist? Is someone who comments anonymously any different because it takes place on the web?
Various commentaries suggest that the outcomes in these type of cases are all over the place, depending on circumstances. What is not in doubt is that First Amendment protection for anonymous posting is not absolute. A good legal analysis is in First Amendment Protection Afforded to Blogs and Bloggers, 35 A.L.R.6th 407. More information about the case is in paidContent. I’m not sure if Digital Media News has the better argument unless the ultimate information sought from unmasking the commentator can be developed through other means. [MG]