Suppose you just finished reading the long section about "So, you want to sue Ripoff Report?", and you realize that the law protects this website and, in most cases, does not allow you to sue the website's operators for the materials published here by users of the site. What do you do now? Of course, as we have said before, the law does NOT protect the original author, and thus you are free to sue that person if you wish. But how can you get the name of someone who posted a report anonymously?
Out of the millions of comments posted on Ripoff Report, once in a while we receive a request asking us to reveal the true identity of someone who posted a report. Sometimes these requests include a subpoena and sometimes they don't. Sometimes these requests come from an attorney and sometimes they are from an average citizen, business owner, etc.
Because most people are not familiar with the legal issues involved and because we regard the privacy rights of our users as extremely important, this section explains our policy on when and how the true identity of a Ripoff Report user may be obtained. This section also provides answers to the following questions:
THE FIRST AMENDMENT RIGHT TO FREE SPEECH INCLUDES THE RIGHT TO REMAIN ANONYMOUS.
First of all, it is important to understand a fundamental point - the First Amendment right to free speech includes the right to remain anonymous. That's not just our view, it is a principle the United States Supreme Court has recognized over and over again; "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42, 115 S.Ct. 1511, 1516, 131 L.Ed.2d 426, 436 (1995).
Why does this matter? Because people who ask us to voluntarily disclose the real name of an author need to appreciate this is similar to walking into a doctor's office and asking to see someone else's medical records. This information is private and can't just be handed over upon request. Rather, you have to follow a series of steps to be sure that the affected party is informed of the request so he/she can take steps to protect their privacy. We'll explain what those steps are later below.
THE RIGHT TO REMAIN ANONYMOUS IS NOT ABSOLUTE.
Of course, the right to remain anonymous is NOT absolute. For example, if someone posts a death threat against the President, the First Amendment will offer no protection. Furthermore, the First Amendment does not protect statements which are false and defamatory.
YOU CAN'T OBTAIN AN AUTHOR'S NAME JUST BY CLAIMING THAT SOMETHING IN A REPORT IS FALSE OR INACCURATE
Although the First Amendment does not protect defamatory speech, this does not mean that you can contact the Ripoff Report and obtain an author's name just by claiming that something in a report is false or inaccurate. We are not in a position to determine which party is telling the truth, so we cannot and will not dissolve the First Amendment rights of our users based on a unilateral allegation that something in a report is false. These issues must be presented to the courts so that a judge can review the matter and decide what to do.
So, what does this mean? What do you have to do in order to get the real name of an author?
The Arizona Court of Appeals has answered that question as follows:
We hold that to obtain a court order compelling discovery of an anonymous internet speaker's identity, the requesting party must show that: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request, (2) the requesting party's cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identity of the anonymous speaker, and (3) a balance of the parties' competing interests favors disclosure.
Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (App. 2007) (If you are interested, you can read the full Mobilisa case here: http://www.scribd.com/doc/76263546/Mobilisa-v-Doe-217-Ariz-103-170-P-3d-712-App-2007
PROCESS FOR ISSUING A SUBPOENA FOR AUTHOR INFORMATION
Because the operator of the Ripoff Report website is located in Arizona and all of our business records are kept in Arizona, we require that any request for the identity of an author must comply with Arizona law, and that means complying with the standards of Mobilisa. This means if you want to obtain the identity of an author, you must do each of the following things:
1) Post a notice as a rebuttal to each report for which you are seeking the author's information. We will not do this for you, so please don't ask. This notice must explain that you have initiated a court proceeding in an effort to learn the author's identity and it should provide a case number and name/address of the court so that the author can appear and defend the case if necessary.
2) Wait a reasonable amount of time for the author to respond to you.
3) If you don’t get a response from the author of the report, you may obtain a subpoena directed to Xcentric Ventures, LLC from an Arizona court (preferably the Superior Court of Arizona, Maricopa County in Phoenix) which describes the information you are requesting. Fancy legalese or magic words are NOT required and we would appreciate it if you would keep your request as SHORT and CLEAR as possible. In general, your subpoena can simply say: "Please produce all author information for the author of Report #123456." You must include the report number with any subpoena you send. Also, please be sure to include YOUR email address with your subpoena. Failure to include a valid email address may significantly delay the processing of your subpoena.
Your subpoena must comply with Mobilisa. This means that you must show your claim of defamation could survive a motion for summary judgment. To meet this burden, you must include with your subpoena a declaration of the Plaintiff (or a corporate representative of the Plaintiff) that states under penalty of perjury which statements in the report you claim to be false, or some other form of admissible evidence, and why you claim those statements to be false.
Personal service of the subpoena is required. You may serve the subpoena on Xcentric’s statutory agent in Arizona: Dickinson Wright PLLC, 1850 N. Central Ave, Suite 1400, Phoenix, Arizona 85004-4568.
4) Xcentric will review the subpoena to determine (a) whether it complies with Mobilisa; (b) whether you have properly served it; and (c) whether the statements complained about are actionable defamation. In order for a statement to be actionable defamation, it must be capable of being proven true or false. Opinions cannot be defamatory. Xcentric will advise you in writing whether it will comply with the subpoena or whether your subpoena is being objected to.
5) Due to the time and expense involved in responding to subpoenas, Xcentric Ventures charges the following flat rate for producing records in order to comply with civil subpoenas. Payment is required prior to production of the subpoenaed information. Xcentric’s subpoena compliance fee for a properly-issued civil subpoena is $150.00, which includes all research costs, mailing costs, copying charges, and related expenses. Checks should be made out to Xcentric Ventures, LLC and mailed to PO Box 310, Tempe, Arizona 85280. Xcentric reserves the right to charge additional fees to repeat issuers of numerous, particularly burdensome and/or improper subpoenas.
6) If the author of the report(s) being subpoenaed does not object to the subpoena or otherwise file a Motion to Quash in the appropriate forum within the requisite time period allowed under Arizona law, and Xcentric determines in its sole discretion that you have met your burden under Mobilisa and properly complied with the subpoena criteria identified in this article, the requested author information will be produced.
7) If Ripoff Report or the author does object to your subpoena, you must bring a motion in the issuing court asking the court to determine that you have complied with the standards set forth in Mobilisa. Depending on the nature of the statements, the position of the author (if any) and the arguments in your motion, Ripoff Report may or may not oppose your motion. If the court reviews your motion and finds that you have satisfied Mobilisa's requirements, then we will provide you with the requested information.
If you have any specific subpoena-related questions which are not already covered above, please feel free to send any questions to [email protected].