An interesting decision on online anonymity and subpoenas in Avas Sales Lead Servs., Inc. v. Doe; the opinion was written Sept. 15, 2022 by Magistrate Judge Sherry Fallon (D. Del.), but her report and recommendation was just adopted today by Judge Maryellen Noreika:
Plaintiff is a flower delivery company offering nationwide floral delivery through three floral networks. To provide flower delivery services, Plaintiff receives orders through its website and obtains flowers from various affiliates. Plaintiff's business has a strong focus on customer service due to the perishable nature of its product, and Plaintiff maintains refund and replacement policies to ensure customer satisfaction. Plaintiff asserts the following facts in its complaint and motion….
Defendant is an anonymous individual who runs the Facebook page "Avas Flowers – Scam," which publishes statements accusing Plaintiff of defrauding its customers and allows Facebook users to publicly post comments regarding their customer experiences with Plaintiff. The Facebook page has been operational since 2015 or 2016. Since that time, Defendant has encouraged commenters on the Facebook page to file formal complaints with the New Jersey Attorney General and to dispute credit card charges from Plaintiff's business….
Plaintiff … [sued] for defamation …. Now pending before the court is Plaintiff's … motion for leave to subpoena Facebook [to determine defendant's identity]….
The court concluded that the subpoena would be enforced only if plaintiff could provide a "prima facie showing" on its claim of defamation, based on "evidence satisfying the summary judgment standard" (the Delaware Doe v. Cahill test):
Requiring facts sufficient to defeat a summary judgment motion before the identity of an anonymous defendant is revealed through the compulsory discovery process "protect[s] against the chilling effect on anonymous First Amendment internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or to unmask their critics."
And the court held this wasn't satisfied:
The first allegedly defamatory statement identified in the complaint states as follows:
Yes they claim to be local and the[sic] are very sneaky about it. Tip:.[sic] A real florist will always have a physical address listed. If you go to Ava's[sic] website and look at the very bottom it shows their physical address being in New Jersey, Even[sic] though everybody knows all their call centers are overseas.
The allegedly false portion of this posting is that Plaintiff is "very sneaky" about claiming it is a local business. But this statement cannot "reasonably be read to state or imply provably false and defamatory facts" about Plaintiff. The statement turns on the poster's personal view of what is "sneaky," and ordinary readers of this posting would understand the use of this adjective as the poster's subjective impression that is not "objectively verifiable as true or false." Moreover, the statement cannot "be reasonably understood to imply defamatory and provably false facts about the subject" because the underlying implication that Plaintiff is not a local business is not defamatory for the reasons set forth [below]….
The second allegedly defamatory statement identified in the complaint states:
Gayla Nesgoda they only truly have one United States location, in New Jersey. My understanding is that is a small warehouse for when they ship flowers via UPS. They have a call center in India, Mexico, and somewhere else in Asia I forget right off where exactly.
The allegedly false portion of this statement, as identified by the complaint, is that Plaintiff "has a call center in India." The allegedly defamatory nature of this statement is the implication that Plaintiff holds itself out as a local business when it is not. But truth is an affirmative defense to defamation under Delaware law, and the Neuenhaus Declaration does not deny that Plaintiff maintains call centers abroad in locations such as Mexico or Asia. Although the Neuenhaus Declaration repeatedly states that it has no call centers in India, it conspicuously avoids any representation that it maintains no call centers abroad. Plaintiff does not explain how a statement about call centers located in India is uniquely defamatory as compared to a statement about call centers located in Mexico or Asia. Because Plaintiff has failed to present evidence that it has no call centers abroad, Plaintiff cannot meet its burden to show that the statement is defamatory as a matter of law.
The third allegedly defamatory statement says, "Don't put the blame solely on local shops. They're working with a fraction of what they're paid for each order. The simplest solution is to shop local and not from some website that's based in India[.]" The allegedly false portion of this statement, as identified by the complaint, is that Plaintiff's "website is based in India." The Neuenhaus Declaration confirms that Plaintiff's website is not based in India. However, … Plaintiff has not shown how a false statement regarding the location of its website harms its reputation or damages its business. To the extent that the alleged harm stems from the implication that Plaintiff is not a local business, it is noteworthy that Plaintiff does not identify the location of its website in the complaint or the Neuenhaus Declaration, nor does it deny that the website is based abroad. Moreover, the Neuenhaus Declaration implicitly confirms that Plaintiff is not a local flower business by stating that Plaintiff operates its business nationwide. Thus, Plaintiff has not met its burden to show that this statement is defamatory as a matter of law. [The court applied similar analyses as to two other statements]…
The Magistrate Judge therefore denied enforcement of the subpoena, and recommended that the case be dismissed:
Over the span of a year, Plaintiff has sought the requested subpoena three times. Each time, Plaintiff has failed to satisfy the good cause standard. Plaintiff represents that this action cannot proceed without further identifying information regarding Defendant. Because Plaintiff admits that the action cannot proceed without the requested relief, and because Plaintiff has failed to satisfy its burden to obtain the requested relief despite being given multiple opportunities to do so, I recommend that the court dismiss this action without prejudice.
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