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THE NONPARTY OPERATOR OF AN ANONYMOUS WEBSITE WHICH POSTED ALLEGEDLY DEFAMATORY STATEMENTS ABOUT RESPONDENT BUSINESS WAS ENTITLED TO MAINTAIN HER ANONYMITY PURSUANT TO THE FIRST AMENDMENT; HER MOTION TO QUASH SUBPOENAS AIMED AT REVEALING HER IDENTITY SHOULD HAVE BEEN GRANTED (FISRT DEPT).

The First Department, reversing Supreme Court, determined nonparty BehindMLM, the anonymous operator of a website which posts articles, was entitled to her anonymity. The respondent GSB had obtained a default judgment in Germany in a defamation action against Google (which hosts the website) and GoDaddy where the site’s domain name is registered. The defamation action was based on articles posted by BehindMLM. BehindMLM was never notified of GSB suit. GSB brought the instant action pursuant to CPLR 3102(c) to compel Google and GoDaddy to reveal BehindMLM’s identity and served subpoenas on Google and GoDaddy for the relevant documents.. After learning of the action, BehindMLM moved to quash the subpoenas:

BehindMLM posted four articles stating that various corporate entities were engaged in a “Ponzi scheme,” frauds, and scams. In 2022, one of the companies mentioned in one of those articles, petitioner GSB Gold Standard (GSB), brought two separate actions against Google in a German court … . * * *​

The issue of whether BehindMLM’s statements were defamatory was not actually litigated and determined in that action, since the German orders were issued on default … . BehindMLM was not a party to the German proceedings, was not notified of the proceedings and was not given an opportunity to litigate the matter … . * * *

We hold that when a party seeks an anonymous online speaker’s identifying information, courts must first require the party to take reasonable efforts to provide the speaker with notice and an opportunity to appear in the action or proceeding … . * * *

When a speaker asserts a First Amendment right to anonymous online speech … , a court should consider the First Amendment rights at stake, whether the party seeking disclosure has stated a showing of a prima facie defamation claim, and the balance of the equities … . This Court has stated that “we should protect against the use of subpoenas by corporations and plaintiffs with business interests to enlist the help of ISPs via court orders to silence their online critics, which threatens to stifle the free exchange of ideas” … .  * * *

… [E]ven if GSB had stated a valid claim of defamation per se by alleging that the statements were false and harmed its business … , the broad and conclusory allegations in the verified petition did not sufficiently establish the falsity of BehindMLM’s statements … . Upon our consideration of all relevant factors, including the weak evidentiary showing and BehindMLM’s asserted First Amendment right to speak anonymously on matters of public concern, we conclude that, on the record as now presented, BehindMLM is constitutionally entitled to maintain her anonymity. Matter of GSB Gold Std. Corp. AG v Google LLC, 2024 NY Slip Op 02983, First Dept 5-30-24

​Practice Point: Here the First Department protected the First Amendment rights of the nonparty anonymous operator of a website which published allegedly defamatory articles about respondent. The respondent’s subpoenas for documents which would reveal the nonparty’s identity were quashed.

 

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