nonymous speech is prevalent on the Internet, of course, but courts nonetheless are often asked to force a web site to reveal the identities of anonymous speakers. Courts are often willing to order the unmasking when there is clearly a valid cause for a libel claim against the speaker. Because many of the demands issued are attempts to silence critics or whistleblowers, courts have started to settle on a standard that tries to tell the two types of claims apart: If the one demanding the unmasking can show he's got a credible libel claim, and the anonymous speaker is given an opportunity to defend himself, courts will allow the unmasking.
The emerging test setting forth guidelines for courts faced with requests to compel web sites to reveal identities of anonymous Internet speakers includes five factors:
the demanding party must make efforts to notify the anonymous commenter and allow a reasonable time for him or her to respond;
the demanding party must identify the exact statements made by the commenter;
the demand must set forth a prima facie cause of action, meaning it must present enough evidence for the demanding party, the prospective plaintiff in the libel claim, to win the case barring any defenses or additional evidence presented by the commenter;
the demanding party must bring forth sufficient evidence for each element of its defamation claim; and
the court must balance the speaker's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous commenter's identity.
The emerging standard was developed in a 2001 New Jersey appellate case, Dendrite International Inc. v. Doe No. 3, and condensed in 2005 by the Delaware Supreme Court in Doe v. Cahill, which is favorable to anonymous commenters.