These are some revealing facts about blogs reported by Technorati statistics: The blogosphere is now 70 million weblogs wide, about 120,000 new blogs are created each day, 1.4 blogs are created every second, and 17 posts are made every second. And, who is blogging the most? The same report shows that Japan is the top blogging nation; and Japanese (37%), English (36%), Chinese (8%) and Italian (3%) respectively are the top four languages for blogging. In 2004, Lycos announced the four most popular blogging topics, entrainment; personal journals; education; health/fitness/parenting/babies/pregnancy; and politics. In 2006, another company reported that politics and technology were the most popular blogging sites in the United States.
But, what are people saying in those blogs? Simple: everything they want to! and for this reason, at least in the United States by now, an interesting case law library on blogs is being compiled. Among these lawsuits and their litigated issues, revealing annoying bloggers' identity remains the more fascinating issue. May an Internet service provider reveal the identity of an annoying blogger? This is definitely the first question to be asked before filing a lawsuit; who is the defendant or respondent and may we legally obtain his name?
The first case addressing this question was tried in 1999. In Columbia Ins. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), this California Court set the standards that a plaintiff must meet before the Court grants discovery of the defendant/blogger"s identity in a trademark infringement case. Here, the court held that plaintiff must: (1) identify the defendant with sufficient specificity for jurisdiction purposes; (2) show previous efforts to locate the defendant; (3) demonstrate that the lawsuit may survive a motion to dismiss; and (4) clearly explain the discovery requested and how it may help to identify the defendant.
After Seescandy.com case and its 'motion to dismiss' standard, there have been other important cases complementing it and addressing the question of whether an Internet service provider (ISP) may be required to reveal bloggers' identity. One of the must recent cases is Klehr Harrison Harvey y Branzberg & Ellers v. JPA Development, Inc. (Philadelphia Court of Common Pleas 2006).
In Klehr, defendant/blogger was posting anonymous comments that allegedly defamed plaintiff, a law firm in Philadelphia. Plaintiff petitioned the Court to order the ISP to reveal the anonymous blogger identity. The Court held that both the application of Philadelphia Rule of Civil Procedure 4011 and the Dendrite Int'l, Inc. v. Doe and Doe v. Cahill precedents answered this question. Rule 4011 said that defendant could seek protective orders for discovery obtained in ‘bad faith' or that cause ‘unreasonable annoyance, embarrassment, oppression, burden or expense.'
The two ‘Doe' precedents followed by Klehr are precisely the leading cases on the issue of ordering ISP to reveal blogger's identity in the United States (now, you know what people mean by the phrase: ‘filing a Doe lawsuit.')
Dendrite Int'l, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct., App. Div. 2001) involved two anonymous bloggers who were former employees of a company and were posting serious comments about the company. On the issue of whether the Court may force the ISP to reveal the identity of the bloggers, the Court set a 4-prompt test. According to the Court, in these cases, the plaintiff must follow these steps:
(1) Must proof that the defendant has been notified and been provided an opportunity to be heard;
(2) Specify the pleadings;
(3) Attend a hearing to determine whether plaintiff may survive a motion to dismiss and can set forth a prima facie claim with supporting evidence; and
(4) If the plaintiff survives step 3, plaintiff needs then to balance defendant's First Amendment rights against the plaintiff's prima facie claim.
Dendrite basically introduced a First Amendment right balancing test to the already established ‘motion to dismiss' standard of Seescandy.com. Then, Doe v. Cahill, 884 A.2d 451 (Del. 2005) came in and expanded the motion to dismiss and First Amendment balancing test standards. Cahill held that obtaining a subpoena requiring an ISP to reveal blogger's identity must survive ‘summary judgment.' Further, the Court said: ‘disclosing anonymous Internet posters' identity would unduly burden the right to speak anonymously.
To conclude, most US Courts protect bloggers' freedom of speech and, besides a summary judgment and motion to dismiss standard in this type of lawsuit, US Courts also require a balancing test between plaintiffs' rights and bloggers' Constitutional rights.