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Court of Appeals Decides Internet Anonymity Case

The Michigan Court of Appeals has ruled in the case of Sarkar v. Does, a case brought by Nicholas Roumel of NachtLaw on behalf of a research scientist who was subject to a smear campaign, by anonymous commenters on an anonymously hosted web site called "PubPeer," that ultimately cost Dr. Sarkar two tenured university positions. The decision was anxiously awaited by both the scientific and internet community, drawing "friend of the court" briefs from Google and Twitter, among others.

Dr. Sarkar had subpoenaed PubPeer to learn the identity of anonymous commenters who had allegedly defamed him. The court held that Dr. Sarkar could not obtain identifying information from PubPeer, because the posts at issue were protected by the First Amendment. Even though the statements were very damaging to Dr. Sarkar, they were regarded as mostly opinion and not "provable as false." Nonetheless, Dr. Sarkar's defamation case was not dismissed in its entirety. One particular claim, based on a forged document that falsely alleged that Dr. Sarkar was being investigated by a U.S. Senate panel, is allowed to go forward, along with other claims of interference with business expectancy, business relationship, invasion of privacy, and infliction of emotional distress.

The court declined to adopt the standard argued by PubPeer, that those seeking the identity of anonymous commenters in internet defamation suits be required to produce evidence when filing their lawsuit, rather than what is typically accepted, which is a "well-pleaded" complaint. Thus Michigan has yet to adopt the stronger standard that many other states have adopted. However, the court did hold that the court must scrutinize a complaint to determine if it pleads a sufficient cause of action, whenever discovery is sought against an anonymous defendant. A trial court must do this without waiting for such defendants to appear and argue for dismissal on their own behalf, and the court also has the power to dismiss a complaint if it is deficient under Michigan Court Rule 2.116 (C) (8).

The decision also reinforces some important rules about pleading defamation cases, including that the statements that are alleged to be defamatory must be pleaded in full, without summary or referral to URL's; and that a statement must be "provably false" to be defamatory, holding that "When a speaker outlines a factual basis for his conclusion, the statement is protected by the First Amendment."

Ironically, PubPeer was represented by the national ACLU, whose interests are usually aligned with the positions taken by NachtLaw attorneys who advocate for civil rights. However, NachtLaw is also strongly committed to fighting to preserve the jobs and careers of workers everywhere, public and private, blue collar and professional. We are proud of the battle we took on, without regret.

The decision is posted on the Michigan Court of Appeals website:

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20161206_C326667_125_326667.OPN.PDF

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