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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Patrick Cahill and Julia Cahill v. John Doe No. 1, also known as "Proud Citizen," et al.

C.A. No. 04C-11-022 JRS (Superior Crt. Del., June 16, 2005), reversed, No. 266, 2005 (Del. Supreme Crt., October 5, 2005)

Court holds that ISP can be compelled in response to Subpoena Duces Tecum to release information that will identify an anonymous speaker accused of making defamatory statements in a blog about plaintiffs provided plaintiffs can show: (i) they have a "good faith basis" to bring their defamation claim; (ii)  the information sought is directly and materially related thereto; and (iii) the information sought cannot be obtained from another source.  Finding plaintiffs had met this burden, the Court directed Comcast to disclose the requested information concerning defendant's identity.  In reaching this result, the Court declined to follow Dendrite Intl. v. Doe, 775 A.2d 756  (N.J. Sup. Ct. App. Div. 2000), which held the party seeking relief to a higher standard, requiring him to demonstrate a prima facie case as a prerequisite to obtaining such disclosure.

Plaintiff Patrick Cahill was a local Smyrna politician who publicly disagreed with policies pursued by Smyrna's then Mayor.  Plaintiff Julia Cahill is Patrick Cahill's wife. 

A blog hosted by a local newspaper contained a bulletin board inviting on-line discussion of Smyrna political issues.  Four individuals posted anonymous statements on this bulletin board. 

Claiming they were defamed by each of these four statements, plaintiffs commenced a defamation action, naming the authors as John Doe defendants.  Through discovery, plaintiffs ascertained that Comcast had information which would permit plaintiffs to identify the anonymous speakers. 

Plaintiffs served a Subpoena Duces Tecum on Comcast, seeking disclosure of this information pursuant to 47 U.S.C. §551.  In accordance with that statute, Comcast notified each of the anonymous speakers of its receipt of the Subpoena.  In response, John Doe No. 1 sought to quash the subpoena.  Finding plaintiff entitled to the requested disclosure, the Court denied John Doe No. 1's motion, and directed Comcast to comply with the subpoena.

Plaintiffs' subpoena called for the Court to balance the protections afforded individuals by the First Amendment to speak anonymously with those afforded an individual to protect his reputation.  The Court acknowledged the importance of the right to speak anonymously, particularly on political issues, and recognized that this right had long received protection under the First Amendment.  The Court also noted, however, that the First Amendment does not protect all speech.  It does not, for example, give one the right to defame another.

Balancing these competing interests, the Court held that plaintiffs could not obtain information which would disclose the identity of an anonymous online speaker unless they could "demonstrate:  (i) that they have a legitimate, good faith basis upon which to bring the underlying claim; (ii) that the identifying information sought (John Doe No. 1's identity) is directly and materially related to their claim; and (iii) that the information cannot be obtained from any other source."

This standard had previously been applied by the Virginia Circuit Court in In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Va. Cir. Ct. 2000), rev'd on other grds., 542 S.E.2d 377 (Va. Ct. App. 2001).

In reaching this result, the Court declined to follow the standard adopted by the New Jersey Appellate Division in Dendrite Intl. v. Doe, 775 A.2d 756 (N.J. Sup. Ct. App. Div. 2000) to evaluate such subpoenas, which "requires a defamation plaintiff seeking the identity of anonymous internet subscribers to: (1) demonstrate that they have undertaken efforts to notify anonymous posters that they are the subject of a subpoena; (2) identify to the court the statements made by each anonymous poster; and (3) establish a prima facie cause of action for defamation against the anonymous posters by producing evidence sufficient to support each element of the claim."  The Court determined that this was too great a burden to place on a plaintiff, and did not strike the appropriate balance between the defendant's First Amendment rights and plaintiff's interest in protecting his reputation.  Said the Court:

[T]he Dendrite standard goes further than is necessary to protect the anonymous speaker and, by doing so, unfairly limits access to the civil justice system as a means to redress the harm to reputation caused by defamatory speech.  Specifically, under Dendrite, the plaintiff is put to the nearly impossible task of demonstrating as a matter of law that a publication is defamatory before he serves his complaint or even knows the identity of the defendant(s).  Indeed, under Dendrite, the plaintiff is not even able to place the alleged defamation in context by describing the relationship between the plaintiff and the speaker because the speaker's identity is protected until the prima facie case against him has been established.

Finding plaintiffs met this burden, the Court directed Comcast to disclose the requested information, and denied defendant's motion for a protective order.

Of interest was the Court's analysis of plaintiffs' good faith basis for pursuing his defamation claims.  In the challenged emails, defendant John Doe referred to Patrick Cahill as "Gahill," and made adverse comments about his mental condition.  The Court held that plaintiffs had shown they had a good faith basis to pursue defamation claims arising out of both statements.  Said the Court:

To make a "good faith" claim of defamation, the Cahills need not establish per se defamation.  Rather, it is enough to meet the "good faith" standard that the Cahills articulate a legitimate basis for claiming defamation in the context of their particular circumstances.  Given that Mr. Cahill is a married man, John Doe No. 1's statement referring to Mr. Cahill as "Gahill" might reasonably be interpreted as indicating that Mr. Cahill has engaged in an extra-marital same-sex affair.  Such a statement may form the basis of an actionable defamation claim.

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