The First Amendment requires courts to apply a robust balancing test before unmasking anonymous online speakers, EFF explained in an amicus brief it filed recently in a New York State appeal.
In the case on appeal, GSB Gold Standard v. Google, a German company that sells cryptocurrency investments is seeking to unmask an anonymous blogger who criticized the company. Based upon a German court order, the company sought a subpoena that would identify the blogger. The blogger fought back, without success, and they are now appealing.
Like speech itself, the First Amendment right to anonymity fosters and advances public debate and self-realization. Anonymity allows speakers to communicate their ideas without being defined by their identity. Anonymity protects speakers who express critical or unpopular views from harassment, intimidation, or being silenced. And, because powerful individuals or entities’ efforts to punish one speaker through unmasking may well lead others to remain silent, protecting anonymity for one speaker can promote free expression for many others.
Too often, however, corporate or human persons try to abuse the judicial process to unmask anonymous speakers. Thus, courts should apply robust evidentiary and procedural standards before compelling the disclosure of an anonymous speaker’s identity.
Under these standards, parties seeking to unmask anonymous speakers must first show they have meritorious legal claims, to help ensure that the litigation isn’t a pretext for harassment. Those parties that meet this first step must then also show that their interests in unmasking an anonymous speaker outweigh the speaker’s interests in retaining their anonymity. In this case, the trial court didn’t require the German company to meet this standard, and it could not have in any event.
Courts around the United States have adopted various forms of this test, with EFF often participating as amicus or counsel. We hope that New York follows their lead.
