EFF submitted an amicus letter to the California Supreme Court urging the justices to review a case that has significant implications for the free speech rights of anonymous online speakers under California law.

EFF wrote the amicus letter in support of an anonymous defendant (Doe 1) who created a website to bring to light what he (or she) believes are abuses being perpetrated against the local Maasai population in Tanzania by a safari company. The company sued the defendant in California for defamation because he used the California-based Weebly web hosting service. Doe 1 filed and lost an anti-SLAPP motion in both the trial and appellate courts. Although the Court of Appeal decision is unpublished, we urged the California Supreme Court to take the case because the decision reflects conflicting approaches taken by Courts of Appeal in interpreting the anti-SLAPP statutes.

There are two issues presented by the defendant/appellant for review by the California Supreme Court. First, contrary to the Court of Appeal’s decision, we agree with Doe 1 that if a defendant files an anti-SLAPP motion that meets the initial burden of showing that the plaintiff’s claim implicates the defendant’s rights of free speech on a “public issue,” the plaintiff should have to present both a legally sufficient complaint and substantiate that complaint with supporting evidence to overcome the motion – and the plaintiff should automatically lose the anti-SLAPP motion if the complaint is legally insufficient. Doe 1 had challenged the legal sufficiency of the safari company’s complaint because it included non-specific allegations of defamation. The lower courts allowed the safari company to cure its defective complaint – and thus overcome the anti-SLAPP motion – by filing declarations with additional evidence.

Second, a defendant’s anonymity should not be an excuse for a court not to consider whether the plaintiff has substantiated the fault element of a defamation claim. Instead of allowing for limited discovery so the safari company could attempt to prove that Doe 1 made defamatory statements negligently, knowing they were false, or with reckless disregard for whether they were true or false, the lower courts denied the anti-SLAPP motion outright, essentially punishing Doe 1 for guarding his identity.

We fear that should courts continue to grant plaintiffs broad flexibility and deference, defendants will more frequently lose anti-SLAPP motions and anonymous online speakers will more frequently be unmasked – chilling speech not only in the United States, but also in foreign countries like Tanzania. As Frank La Rue, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, wrote: “The right to privacy is essential for individuals to express themselves freely. Indeed, throughout history, people’s willingness to engage in debate on controversial subjects in the public sphere has always been linked to possibilities for doing so anonymously.”

The Cyberlaw Clinic at the Berkman Center for Internet & Society at Harvard Law School also highlighted the importance of anonymity to online speakers overseas in an amicus letter urging the California Supreme Court to hear the appeal.

We hope that the California Supreme Court reviews the case and resolves the issues presented to ensure that First Amendment principles and the California anti-SLAPP statutes are appropriately applied to protect online and anonymous speakers from unfair retaliation.