How to remain an anonymous critic

Eager to blow the whistle on a bad-guy corporation or official? Or do you just have a beef with someone big and powerful, someone like Oprah, someone you'd rather go up against anonymously? Topix CEO Chris Tolles, whose online indie writers have taken on a nasty and litigious sheriff, among others, pulled together a checklist to help you cover your anonymous ass. Don't get SLAPPed with a lawsuit.

From: Chris Tolles Subject: RE: Strategic Lawsuits Against Public Participation Date: December 17, 2007 12:48:59 PM PST To: Paul Boutin

Here's the primer.

SLAPP — Strategic lawsuit against public participation.

"Anonymous" whistleblowers on message boards and forums can be named in a lawsuit designed to prevent discussion.

SLAPP suit

  • SLAPP lawsuits are essentially filed claiming libel or defamation against speech or written word in a public forum concerning a public issue.
  • SLAPP statutes and Anti-SLAPP statutes are state level, with varying nuance. (Important! Your rights vary quite a bit depending on the state)
  • Example could be the beef lawsuit against Oprah Winfrey, which she won.

What you need to worry about

  • Posting "anonymously" on a Web service isn't, if someone issues a SLAPP lawsuit and you logged in from home
  • The Web service where you posted "anonymously" might have your IP address
  • Most Web services are required to release information subpoenaed in a defamation lawsuit under the DMCA (or risk crippling fines)
  • If they get your IP address from the forum site, they can subpoena info from your ISP (same thing)
  • You probably will not know that your comment is part of a discovery process (unless you're on top of things)

Some difficulties for the potential SLAPPer

  • Interstate subpoenas (from a court in Georgia to a website in Palo Alto, for example) need to go through a clearing system which is nontrivial
  • Forum websites might flush the IP addresses they gather
  • Most privacy policies will require a valid subpoena for a publisher to give up the IP address
  • Some IP addresses are more difficult to track (public computers, ISPs with DHCP, etc)

If someone files a SLAPP lawsuit and files a valid subpoena and you're worried about being named as part of the discovery process:

Things to do

  • Keep tabs on litigation involving what you're posting about
  • Hire a lawyer if you are worried about your livelihood or life being seriously affected

What you want your lawyer to do

  • Get the judge to see the case as a First Amendment issue, which provides for a special motion filed by a defendant claiming free speech in defamation cases.
  • Halt the discovery process
  • Even if the case proceeds, get the judge to prevent the plaintiff from getting access to the identities of the people involved

Big takeaway: You need a lawyer to fight this kind thing, and you need to keep on top of it if you wish to remain anonymous. The flipside is that many states have special legislation and process for these kinds of lawsuits.

(Cartoon by Chris Slane)