The Supreme Court of Texas has refused to provide the identity of an anonymous blogger, in a 5-4 split decision released this week. The blogger initially claimed to be an employee of the Plaintffs’ company. He created a site in 2007 which targeted a business and its CEO, making a number of disparaging comments about the Plaintiffs and alleging involvement in a Ponzi scheme.
The Plaintiffs sought the identity of the blogger through Texas Rule of Civil Procedure 202, which states,
202.1 A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either:
(a) to perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or
(b) to investigate a potential claim or suit.”);
202.2(b) “The petition must . . . be filed in a proper court of any county:
(1) where venue of the anticipated suit may lie, if suit is anticipated; or
(2) where the witness resides, if no suit is yet anticipated…
Specifically, the Plaintiffs requested name, address, and telephone number and the identity behind the email address of the owner of the blog, in anticipation of a lawsuit.
The court approved use of the email address for providing notice to the blogger, who defended the petition through counsel anonymously, seeking to quash the petition on the basis that he had minimal contact with the state.
The CEO Plaintiff was a resident and owned a house in Texas. Google, who was also named but did not oppose the petition, was found to be under the court’s jurisdiction. However, due to the anonymous nature of the blogger involved the majority of the court declined to adopt jurisdiction.
The majority decision noted that the pre-suit discovery mechanism appeared to be available since 1879, but has been rarely interpreted. A number of amendments to the statute made subject-matter jurisdiction an explicit requirement through the use of the term “proper court.” The majority concluded that for the court must have personal jurisdiction over the potential defendant, and there was an onus on the Plaintiffs to demonstrate this.
The majority expressed concern that pre-suit mechanisms could be used in Texas to identify information about defendants that the court would not have jurisdiction for the suit proper, and the plaintiffs would then pursue litigation against these defendants elsewhere. They referenced a statement by the Supreme Court, in a more recent case earlier this year. In Walden v. Fiore, 134 S. Ct. at 1123 the Supreme Court qualified the flexible standard for personal jurisdiction of non-residents enunciated in International Shoe Co. v. State of Washington, 326 U.S. 310, stating,
…[d]ue process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the random, fortuitous, or attenuated contacts he makes by interacting with other persons affiliated with the State.
They also expressed concerns that Texas already had the broadest pre-suit discovery mechanisms in the entire country, and referred to the United States Supreme Court’s comment in Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 145 (1988),
…it is possible that Texas has constituted itself the world’s forum of final resort, where suit for personal injury or death may always be filed if nowhere else
The minority decision stated that the approach of the majority effectively abolished a cause of action against anonymous online defamation. No authority was found from any state requiring “a trial court to establish personal jurisdiction over an anonymous party before compelling revelation of his identity from another source.”
They pointed out that the court had no ability to actually ascertain the connection of the defendant to the state while he continued to obscure his identity. The effect of this ruling is that even anonymous bloggers in Texas would successfully be able to repeal the court’s jurisdiction.
The dissent also made some very pointed comments about the effects of online defamation,
The ever-rising cost of litigation impacts the ability of ordinary citizens to access our courts to pursue justice. Today the Court misinterprets our rules of civil procedure to create a quagmire for persons injured by anonymous Internet bloggers by forcing them to either file potentially fruitless lawsuits in an attempt to determine the identity of the alleged wrongdoer or waive redress. At best, this unnecessarily increases litigation costs for those persons injured by online defamation, while imposing additional burdens on our already overloaded court system. At worst, it deprives injured parties of reparation.
For all its virtues as a forum for communication, the Internet also presents many dangers. This is particularly true when speech is published anonymously.
As such, modern technology has made the ability to seek redress for injury due to defamation that much more important, and that much more difficult. In the face of these modern-day realities, today the Court further cripples that ability, effectively extinguishing the claims of those who have the misfortune of being defamed by one who conceals his identity.