All you anonymous internet commenters can sleep a little easier, at least in California. A recent California Appellate court hinted that the identity of individuals commenting in online comment sections would be given strong protections under the California Constitution’s right to privacy.
The decision arose within the context of copyright infringement dispute pending in New York between Escape Media Group (“Escape”) and UMG Recordings, Inc. (“UMG”). Escape operates the well-known internet music-streaming site, Grooveshark, and UMG accused Grooveshark of infringing on its copyrights.
The litigation between these two corporations is well known in the music industry. The Digital Music News (“Digital”), an online newsletter, reported that a musician, unaffiliated with UMG, had also accused Escape of copyright infringement. And in comes what all the fuss is about.
If you read your news online, then you are likely familiar with the infamous “Comments” section. It’s usually a complete waste of time, but, it’s entertaining nonetheless.
An anonymous user identified only as “Visitor” made two comments that basically said:
A. That I am a Grooveshark employee and
B. That Grooveshark’s company policy is infringing copyrights.
Escape obtained a subpoena in New York to uncover the Visitor’s identity and attempted to have it enforced in California. After the Los Angeles Superior Court initially ordered Digital to comply with the subpoena, the California Appellate Court overturned and ordered the subpoena vacated.
The Appellate Court ruled that the identity of the commenter was both “not reasonably calculated to lead to discovery of admissible evidence” and even if it was, the identity would be protected by California’s Constitutional Right to Privacy.
Digital had standing to invoke the anonymous commenter’s privacy rights and the discovery of the third party’s identity would be subject to a balancing test that focused on the need for discovery and privacy rights of the person. The court used strong language indicating that it would be difficult to prove unfairness because the anonymous commenter:
“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. Such commentary has become ubiquitous on the Internet and is widely perceived to carry no indication of reliability and little weight. We will not lend the subpoena power of the courts to prove, in essence, that Someone Is Wrong On The Internet.”
To read the full opinion, see Digital Music News, LLC v. Superior Court, 226 Cal. App. 4th 216 (Cal. App. 2d 2014). The case has been digested and added to the eDiscovery Assistant under Case Digests — to find it, filter using the title in the search box.
Our takeaway: In California, if you want to discover the identity of an individual who makes anonymous comments in the “Comments” section on internet websites, you better be ready to show that you have a compelling need that outweighs the privacy interests of the anonymous commenter—a showing that will be hard to come by, given the obscurity of the forum.