Frivolous, abusive legal attempts to intimidate and silence online critics are hardly rare. From school superintendents to developers to mayors to businesses, bogus lawsuits are often tempting tools for those looking to expose and embarrass critics or simply intimidate them into silence. While we've seen many ridiculous lawsuits filed in recent years aimed at improperly unmasking anonymous online speakers, however, an action filed in the Northern District of California last month stands out given its unusually high number of abusive elements (even for a "John Doe" case).
On July 6, Northcliffe Media Limited, a UK newspaper conglomerate owned by the publisher of the Daily Mail, filed suit in federal district court after its CEO Steve Auckland was parodied in a series of spoof Twitter accounts such as @unstevedorkland. The Twitter feeds, featuring a thumbnail photo of George Clooney (a nod to Auckland's apparent resemblance to the superstar actor—decide for yourself), mocked the CEO and operations at the company, documenting (presumably) fictitious exchanges with Northcliffe employees and portraying the executive as pompous and out-of-touch. Instead of ignoring the feeds (which, at the time, had only a handful of followers), Auckland and Northcliffe filed suit and promptly followed it with a subpoena to Twitter for the identity of the user. And what a suit it was.
Where to begin? The complaint is nothing short of ridiculous.
- Bogus "hacking" allegations. Northcliffe opined that the problem with the spoof accounts weren't that they made fun of the CEO but that the information included must have been the result of computer hacking in violation of federal and (California) state anti-hacking statutes. What computers were hacked and when? Northcliffe doesn't say, but it points out that some of the information tweeted was "not publicly known" and therefore speculates without a shred of evidence that "the only way that such information could be obtained was by hacking into an email account at Plaintiff's business." (It completelly ignores, for example, that the accounts could simply have been set up by a disgruntled employee or someone else who is privy to Northcliffe gossip.) Unfortunately for Northcliffe, speculation of this sort doesn't cut it in federal court and such claims would have promptly been thrown out.
- Mystery claims of "defamation." Northcliffe also argued that some of "UnSteveDorkland's" tweets were defamatory. Which ones? Again, Northcliffe won't say. As a First Amendment matter—and the First Amendment is squarely at play as U.S. courts won't order relief for foreign claims inconsistent with the First Amendment—plaintiffs need to actually identify what online statements they are claiming are defamatory and explain why. Moreover, as Auckland is a public figure, Northcliffe would have the burden of proving that any "defamatory" statements were indeed false. This claim too failed on its face.
- Meritless "online impersonation" allegations. Northcliffe also argued that the Twitter user somehow "credibly" impersonated Auckland in violation of a controversial new California statute aimed at stamping out identity theft and other malicious instances of online impersonation. Even leaving aside the statute's questionable constitutionality, it would have been all but impossible for Northcliffe to show that readers would somehow confuse the musings of "UnSteveDorkland" with the upset CEO. (Perhaps the accounts of late night fast food consumption hit a bit too close to home.)
- Unathorized subpoenas. The complaint was anything but serious and seemingly just a pretext to issue a subpoena to unmask the CEO's critic. That subpoena strategy is bad enough when courts are involved—litigation is expensive and judges sometimes get it wrong. But Northcliffe's attorneys shockingly issued a subpoena to Twitter without even waiting for court permission. Attorneys self-issue subpoenas in federal cases by invoking the power of the federal courts and are not literally issued by courts themselves, but attorneys correspondingly have what the Ninth Circuit Court of Appeals has called a "grave responsibility to ensure that [the subpoena power] is not abused." Indeed, the Fifth Circuit Court of Appeals recently affirmed a $32,000 sanctions order in an EFF case in which the opposing counsel did something similar. In the Northfield case, the plaintiff just ignored its obligations to get court permission first and went ahead and tried to subpoena the information from Twitter before anyone knew what was happening.
Luckily, UnSteveDorkland had help. Frank Sommers of the San Francisco firm of Sommers & Schwartz LLP filed a motion to quash on Tuesday, pointing out not only the legal deficiency of the complaint but also the serious misconduct regarding the issuance of the subpoena. Two short days later, Northcliffe not only withdrew its subpoenas, it dropped the case entirely. It remains to be seen whether they'll try again but, Streisand Effect reaffirmed, UnSteveDorkland will have far more attention for his musings in the meantime than he or she possibly could have hoped for before the case began.