A stricter regime for profiling07 June 2016
Does California Twitter Umasking Order Suggest the Application of Foreign Privacy Law in the US?
Twitter unmasks anonymous British user in landmark legal battle
California court forces site to reveal personal details of user accused of libelling local authority in north-east England
Thus read a headline in The Guardian (UK).
The Guardian was reporting on a recent California ruling ordering Twitter to unmask an anonymous critic of a UK local government council. The ruling raises the question of whether foreign privacy law will be applied in the US. In this case, the ruling deprived someone of privacy (the anonymous online critic), but the outcome seeks to suggest that a US company may be subject to foreign privacy law, even if it conflicts with First Amendment principles.
In the EU, one element of privacy law is the right to know who is making anonymous criticisms. This has made it difficult for US companies operating in the EU to use anonymous whistleblower hotlines (deemed useful in corporate governance). In the US, of course, the right to criticize anonymously has a strong degree of First Amendment protection.
At a time when it appeared courts were perceived to be more cautious in ordering the unmasking of anonymous online speakers in the face of requests to order their identification, according to the Guardian (UK) newspaper "Twitter has been forced [by a California court] to hand over the personal details of a British user in a libel battle that could have huge implications for free speech on the web." A local town council in the UK made the judicial request to unmask a local critic. These developments come at a time when a so-called "super injunction" issued by a court in the UK to prevent any mention of an ongoing legal proceeding involving a famous footballer allegedly was violated by Twitter postings (and reported upon in the press). The litigant footballer is reported to be seeking the identity of the Twitter user in order to proceed against him or her for violating the super injunction.
Presumably, the unmasking action was commenced in California because Twitter does not yet have a foreign presence sufficient for jurisdiction in a UK court. This raises the question of the role of the First Amendment in considering requests to unmask anonymous speakers. Under the SPEECH Act, 28 U.S.C. 4101 et seq., judgments against businesses that are inconsistent with the First Amendment may not be enforced in the United States. The law does not address procedural motions. Quaere whether requests to unmask involving litigants from foreign countries should consider the First Amendment implications of the request, since it is a US court considering the request and the entity subhect to the court order to unmask is a US company. Moreover, until the person is unmasked, it is not clear what their nationality may be and he or she may be a US citizen.
While the Twitter unmasking case involves a loss of privacy, there could be matters where a foreigner claims that greater privacy protections are required in the US from a US entity because of the nationality of the individual involved. This is the theory recently floated by EU Justice Minister Vivienne Reding when she spoke of "protection regardless of the data location".
Even where US law clearly applied in a recent unmasking case, the result was forced disclosure of the identity of an anonymous online critic. In Indiana, a "Marion County judge recently ordered the Indianapolis Star and two other media outlets to turn over information that would allow a former chief executive of Junior Achievement of Central Indiana to discover who anonymously posted comments about him so that he can sue those posters for libel."
Yet, in January, a Pennsylvania court followed the test established in 2001 in the Dendrite case from New Jersey (and widely adopted), and vacated a trial court's order for the disclosure of the identities of six anonymous persons accused of online defamation. It employed the Dendrite four-prong test for unmasking anonymous online speakers: (1) notification to the John Doe defendants, (2) sufficiency of evidence to establish a prima facie case for all elements of a defamation claim, (3) an affidavit from the plaintiff asserting that the information is sought in good faith and is necessary to secure relief, and (4) that the court has expressly balanced the defendant's First Amendment rights against the strength of the plaintiff's prima facie case.
Thus, the outcomes in cases where the identity of an anonymous critic is sought appears to vary depending on the court deciding the reuqest to unmask. The recent unmasking orders in California and Indiana have caused some to wonder whether is it the case that "the age of anonymity is over"? The California ruling also implicates the issue of whether foreign privacy law applies in the US.
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