If you’re a reader of superhero comic books, you know two things: The superhero needs a reason to unmask the villain, and the villain must fight hard to protect his or her identity. But these principles do not operate only in the realm of the fantastic — they are also emerging as central tenets in Internet defamation cases.

As two recent 6th District Court of Appeal opinions confirm, to fight a battle on this terrain, like superheroes and villains, parties need to be aware of obstacles they may encounter: Would-be plaintiffs seeking to sue anonymous Internet bloggers should take note of Krinsky v. Doe, 159 Cal.App.4th 1154 (2008), which held that a plaintiff cannot compel disclosure of a blogger’s identity without making a showing of the blogger’s liability. And defendants who successfully move to quash a subpoena seeking such disclosure should note Tendler v. www.jewishsurvivors.blogspot.com, 164 Cal.App.4th 802 (2008), which denied anti-SLAPP fees to such defendants.

‘Krinsky’ and the Prima Facie Requirement

Suppose Doe, an anonymous Internet blogger, posts an allegedly defamatory message about Jones on a blog. To serve Doe with a complaint, Jones needs to learn Doe’s identity, so she serves a subpoena on Doe’s Internet service provider. The ISP notifies Doe it will divulge Doe’s identity unless Doe moves to quash the subpoena. Doe then does so. How should a court balance Doe’s First Amendment right to engage in anonymous speech with Jones’s right to pursue a claim?

This is the issue that confronted the Krinsky court, which grew out of a Floridabased defamation/intentional interference lawsuit arising from the posting of comments on a financial message board. The comments referred to Krinsky as a “crook,” stated she had a “fake medical degree” and suggested she had “poor feminine hygiene.” Seeking to discover the identity of one poster (“Doe 6”), Krinsky served a subpoena on Yahoo, which informed Doe 6 that it would comply with the subpoena unless Doe 6 moved to quash. Doe 6 did so but the trial court denied the motion.

The Court of Appeal reversed, holding Krinsky had failed to make a prima facie showing of defamation. That showing, Justice Franklin Elia held, was required to ensure Krinsky was “not merely seeking to harass or embarrass [Doe 6] or stifle legitimate criticism.” As he noted, using a “pseudonymous screen name” gives the user a “safe outlet” to express “novel ideas” or “unorthodox political views,” or to criticize others “without fear or intimidation or reprisal,” and online anonymity allows such speech “without suppression or other intervention by the media or or more powerful figures in the field.”

“[A] key issue” in such cases, Krinsky noted, is whether such statements are fact or opinion. Examining Doe 6’s statements and their context — including recent public attention given Krinsky’s company and a two-month message board discussion of it — the court concluded Doe 6’s postings were “intemperate, insulting, and often disgusting,” but nondefamatory, non-actionable opinion.

The court reached a similar conclusion on intentional interference. Krinsky had alleged Doe 6 was a “short seller” of Krinsky’s company’s stock and had posted the messages to cause stock analysts and the market to view Krinsky and her company negatively and to cause a decrease in the stock price, ultimately for Doe 6’s financial benefit. But because this claim was “based entirely” on nondefamatory opinion, casting the claim as “interference” could not save it. Thus, Krinsky failed to make a prima facie showing it as well.

In her briefing, Krinsky also suggested Doe 6’s postings may have violated state and federal securities laws. But since she never pled such causes of action, the court did not decide this issue. The court’s analysis, however, leaves no doubt that it would have required prima facie evidence of any such violations as well, although it is unclear whether a First Amendment defense would apply.

The ‘Tendler’ Transformation

Four months after Krinsky was decided, its significance was debated in Tendler, which explored the relationship between a similar motion to quash a subpoena and the anti-SLAPP statute, Code of Civil Procedure Section 425.16. In enacting that statute, the Legislature was concerned about lawsuits brought primarily to chill the exercise of constitutional free speech and petition rights. The statute permits defendants to move to strike a “cause of action” that arises from a defendant’s actions taken in furtherance of such rights in connection with a public issue. The trial court must grant such a motion — and award the defendant fees and costs in bringing it — unless the court finds the plaintiff has established a probability of prevailing on the claim.

Tendler arose from an Ohio-based defamation action brought by an Ohio rabbi, who claimed that anonymous Internet bloggers (Does) posted defamatory statements about Tendler — the court gave no details — on blogs related to matters of interest to the Orthodox Jewish community. After suing, Tendler served subpoenas on Google in Santa Clara County, seeking to discover the bloggers’ identities. The bloggers moved to quash, and shortly thereafter, filed an anti-SLAPP motion to strike the subpoena. Three weeks later, Tendler “dismissed” his request for the subpoenas without prejudice. The trial court nevertheless heard the anti-SLAPP motion (and Does’ accompanying fee motion), granted those motions, and awarded Does $20,000 in fees under the anti-SLAPP statute.

In an opinion by Justice Nathan Mihara, the 6th District reversed, finding the anti-SLAPP statute does not apply to a motion to quash a subpoena, but only to “causes of action” in a complaint, cross-complaint, petition or other similar pleading that initiates a judicial proceeding. Because a subpoena does not fit any of these categories, the court reasoned, an anti-SLAPP motion does not lie and fees for resisting a motion to quash are not recoverable.

The Does countered by relying on Krinsky, claiming that because issuance of a subpoena depends on the pendency of a “cause of action” and “must contain causes of action” to “justify the subpoena’s issuance,” a subpoena is tantamount to a cause of action and the anti-SLAPP statute applies. The court disagreed, noting that Krinsky merely sets forth the standard “applicable in deciding a motion to quash” — a prima facie showing of liability. That such a showing would have been required to quash the subpoena, the court noted, “does not mean that [Tendler’s] request for subpoena was a complaint-like pleading stating causes of action.”

Finally, the court rejected the Does’ argument that, absent the availability of an anti-SLAPP motion, First Amendment rights may be put at risk. The court responded that, given the statute’s indisputable limitation to “causes of action,” arguments to broaden it to motions to quash should be addressed to the Legislature. The court found it “debatable,” however, “whether the unavailability of a Section 425.16 special motion to strike deprives an anonymous speaker whose identity is sought by a subpoena of adequate means to protect his or her First Amendment rights.” The court noted that those served with such subpoenas have a legitimate method of preserving their anonymity via a motion to quash, even though they cannot recover fees under the anti- SLAPP statute if that effort succeeds.

Justice Richard McAdams filed a concurrence, agreeing that because the motion to quash “present[ed] no cause of action to be stricken” — but only “ancillary assistance” of a California court “in order to prosecute his [Ohio] action” — the statute did not apply. He urged the Legislature, however, to consider expanding the statute to motions to quash, noting the “proliferation of chat rooms and websites” that allow computer users to express their views — a trend that inevitably will produce increased requests for the identity of anonymous posters — and the need to guard against the “silencing of a critic by harassment, ostracism, or retaliation.”

Together, Krinksy and Tendler pose interesting issues. As Krinsky established, a party must present prima facie evidence of defamation to prevail on a motion to quash —evidence that will support a ruling in its favor “if no controverting evidence is presented.” With Tendler, however, an anti-SLAPP motion does not lie in response to a subpoena request. It is ironic that the very evidence necessary to defeat a motion to quash is the same evidence that would be used to defeat an anti-SLAPP motion, the only difference being that after Tendler, an anti-SLAPP motion cannot be used to defeat a motion to quash.

The Aftermath

Whether you are Batman fighting the Joker or a potential party in an Internet defamation case, there are rules that govern your “battle.” In the realm of the fantastic, the rules are simple and unchanging: The superhero always wins and the villain always loses.

In the legal realm, the rules governing Internet defamation cases are more complex and evolving. Whether you seek to prevail as a plaintiff or defendant, Krinsky and Tendler arm you with what you need to know.

Plaintiffs: If you serve a subpoena seeking to discover the identity of an anonymous blogger who has wronged you, the blogger will likely move to quash. To defeat the motion, you must present evidence of why you likely will prevail.

Defendants: If you are seeking to protect your identity in the face of a subpoena, you have options. One is to move to quash, knowing, however, that you will be denied anti-SLAPP fees if you are successful. Your anonymity will be protected, but you will not be reimbursed for the expense of having protected it. The other option is to reveal your identity and proceed to the defense of a cause of action contained in the plaintiff’s complaint. In California, part of your arsenal is an anti-SLAPP motion: If the plaintiff is unable to make a showing of probable success on the merits, you may prevail and obtain fees. While your anonymity may have been compromised, your First Amendment rights may be vindicated with a fee award.

Perhaps you seek to unmask the anonymous blogger who has defamed your reputation; perhaps your mission is to protect your identity. In the universe of Internet defamation cases, ignorance of the rules can be as deadly as Kryptonite was to Superman. Thus, whatever side of the battle you might be on, knowledge of those rules will give you an invaluable shield — and might help you save the day.

A version of this article originally appeared September 24, 2008 in The Daily Journal