The long-running case of Solers, Inc. v. Doe in the District of Columbia raises the interesting dilemma of balancing significant free speech rights with the interest of an alleged "victim" to pursue claims against an alleged anonymous defamer.  Usually, this issue arises in the context of an online message board poster's public diatribe against someone or something, made under a pseudonym.  The alleged victim then sues the poster under the name "John Doe" and immediately subpoenas the web site host or publisher to try to discover the real identity of the poster.  Thus far, courts have acknowledged the transcendental importance of free speech and, for the most part, blocked disclosure of the posters' identities.  A collection of some of those cases is described here.  In Solers, there is a twist.  An informant ("whistleblower") made a private report to the SIIA via a piracy reporting link on the SIIA's web site, and Solers subsequently embarked on a quest to unmask that informant.  The latest appellate ruling in the case is a mixed bag for Solers, establishing significant hurdles that make it unlikely for Solers to acquire the identity of the informant, but giving Solers one more shot to try.  More significantly, the decision adds to a body of case law addressing when an alleged claim of wrongdoing may overcome the First Amendment right to make anonymous speech.

Solers' story begins back in 2005, when an anonymous tipster contacted SIIA and alleged that software piracy  was occurring within the company (Solers, Inc.).  SIIA discussed the matter with Solers through its attorneys and for undisclosed reasons, decided not to pursue the matter further.  Solers then demanded to know the identity of the informant.  SIIA refused, consistent with its longstanding policy of protecting the identity of its sources.  For obvious reasons, SIIA deems it extremely important to protect the confidentiality of persons reporting piracy, if they desire.  This policy encourages future reports and encourages candor in those reports.  

Solers then filed a defamation claim against "John Doe" in the District of Columbia trial court, and subpoenaed SIIA for the identity of Doe.  SIIA again refused, and the trial court quashed the subpoena.  In a series of rulings over several years, the trial court consistently held that Solers must come forward with some quantum of evidence – beyond a mere allegation – that the private piracy report somehow caused damage to Solers, and that Solers could satisfy the other elements of its claim, and that it had exhausted all other sources to try to uncover the informant.  Only this showing would be sufficient to overcome Doe's First Amendment right of anonymous speech.  Solers never was able to do so, and the court dismissed its claim.  Solers appealed.

The recent decision of the D.C. Court of Appeals announces a "new" standard that appears substantially consistent with what the trial court had already told Solers: it must present real evidence, not allegations or assumptions.  In fact, the appellate court went further, essentially requiring Solers to present evidence creating a "genuine issue of material fact," similar to the standard for overcoming a summary judgment motion:

"When presented with a motion to quash (or to enforce) a subpoena which seeks the  identity of an anonymous defendant, the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to
notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit. We do not require a separate balancing test at the end of the analysis, nor do we require a showing that the plaintiff has exhausted alternative sources for learning the information."

Although Solers already had the opportunity to meet essentially these standards before the trial court, the Court of Appeals gave it one more chance and sent the case back to the trial court.  Thus, while free speech advocates applaud the ruling for maintaining a high standard for unmasking anonymous speakers – especially those who make "beneficial" speech like reporting piracy – Solers' case continues at least for the time being.

As Solers was unable to establish its case the first time around, there's little reason to believe it will fare any better now.  Indeed, in the typical circumstance of piracy reporting (via non-public communications) it is difficult to conceive how some elements of a defamation claim could be met – let alone producing evidence sufficient to establish a “genuine issue.”  But the standards announced by the appellate court likely will have application to other cases.  As online speech becomes more and more prevalent, courts will continuously confront the conflict of First Amendment rights versus the rights of those believing they have been harmed by speech.