A recurring issue in the Internet era is whether financial message board posters can hide their identities behind pseudonyms and blast away at the honesty, competence and other personal characteristics of the management of publicly traded companies.
In Krinsky v. Doe 6 (2008) __ Cal.App.4th __ , 2008 WL 315192, the California Court of Appeal for the Sixth Appellate District (which includes Silicon Valley), came down on the side of anonymous potty-mouths. The Court held that a post on a Yahoo! financial message board accusing three named management members of of SFBC International Inc. of being “boobs, losers, and crooks” was not legally defamatory and that Ms. Krinsky, one of the named managers, could not discover the true identity of Senor_Pince_Wey, her anonymous detractor.
Noting that the right to speak anonymously is part of free speech, to a point, the Court then sorted through differing standards that have been promulgated in various courts to allow discovery of a poster’s identity. The panel decided that to obtain the true identity behind a fictitious name, a plaintiff must establish a prima facie showing of a cause of action, here libel, in order to obtain the true identity of the poster. Conceding that the identity of the poster might be necessary to establish a prima facie case in some instances, the Court established a threshold requirement of showing that a libelous statement has been made.
Here, the “boobs, losers, and crooks” statement, surrounded as it was by obvious vitriolic hyperbole, could not be viewed as “asserting or implying objective facts,” and therefore was not libelous. Similarly, the other crude sexual and anatomical references Senor_Pince_Wey had posted could not be the basis of a defamation action.
This case was decided by the same three Justices who applied the California Constitution’s Shield Law to bloggers in O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423 and prevented Apple Computer from obtaining unpublished information. As in O’Grady, the well reasoned and detailed opinion does great service to the First Amendment.