John Doe Wins a Case

The Texarkana Court of Appeals recently considered a case of first impression in Texas relating to the identity of bloggers.  The Essent PRMC Hospital filed suit against 10 "John Doe" bloggers who were apparently saying not so nice things about the hospital on a blog.  Claiming the comments to be libelous, the Hospital sought a court order requiring the blogger's ISP to disclose the identity of the bloggers so that they could be formally sued and could appear in the lawsuit.

The trial court essentially refused to enter the order requiring disclosure until the bloggers had an opportunity to appear and be heard.  Clever fellows hired a lawyer to show up in court, but they didn't come.  The lawyer did his best to defend the blogger's rights to freedom of speech, but the trial judge eventually ordered disclosure.

The Court of Appeals made a few important rulings.

First, the federal statute 47 U.S.C, Section 551 does not provide an independent discovery mechanism for disclosure of identity.  It merely provides a substantive basis for disclosure and provides the ISP a "safe-haven" if it discloses in response to a court order.  (Interestingly, the Court took the position that when the government requests disclosure, it must prove, by clear and convincing evidence that a crime has likely been committed).  Private parties need not meet this burden.

Second, the Court held that getting a disclosure order requires compliance with the Texas Rules of Civil Procedure.  It is effectively a discovery request to a third party (the ISP that is asked to disclose names is not part of the litigation), and it must meet the requirements of Texas Rule 202 or some other discovery device in order for the trial court to act.

Third, there are constitutional protections for all "speakers" on the internet.  In order to prove their right to get the identities of bloggers, a litigant must show enough evidence to survive a Motion for Summary Judgment.  In other words, merely claiming that the words are libelous is not enough.  The trial judge would have to be satisfied that if the words were indeed published, then the plaintiff would have a valid claim.

The opinion, No. 06-07-123-CV, styled In Re Does 1-10 (December 12, 2007) is the first effort I have seen by a Texas appellate court to determine the rights and obligations of bloggers, and it is worth a read.  Click on the Title of this post to read the opinion.