Washington Journal of Law, Technology & Arts


Mallory Allen


There is no judicial consensus about what test to apply when plaintiffs attempt to obtain the identity of an anonymous Internet user during discovery in an online defamation case. In July 2010, the Ninth Circuit became the first federal appeals court to devise an articulable test to determine when a plaintiff may compel disclosure of an online commentator. Previously, federal courts had applied inconsistent balancing tests to determine whether disclosure was appropriate. In In re Anonymous Online Speakers, the Ninth Circuit relied upon the Delaware state-court standard from Doe v. Cahill but applied this test in a way that made it easier for commercial defamation plaintiffs to obtain the identity of anonymous defendants. This Article surveys the prevalent online defamation cases, summarizing the three primary judicial tests applied by state courts and positing that other circuits likely will adopt the reasoning set forth in Anonymous Online Speakers for commercial online speech.

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