Reddit, Yelp, GlassDoor, Indeed, TripAdvisor and the PubPeer Foundation have collectively filed an amicus brief in BehindMLM’s GSB Gold Standard Corporation appeal.

In their capacity as a “group of online speech platforms with millions of daily users”, brief movants (amici) above seek to address an “important question”;

What standard New York courts should use to determine whether to override an anonymous speaker’s First Amendment rights when a party seeks to disclose the speaker’s identity.

The proposed summarized answer to the question is framed as such;

Just as when Hamilton, Jefferson, and Madison published The Federalist Papers under pen names, speakers on the Internet often engage in constitutionally protected anonymous speech today.

The Internet functions as the modern public square. Amici’s and other online speech platforms host a diversity of valuable anonymous speech.

This speech holds powerful institutions accountable and informs people when they make key decisions in their daily lives.

Across the spheres of public safety, scientific scholarship, labor, and consumer welfare, online speech platforms such as amici’s help users share and consume valuable information anonymously.

Given the vital role First Amendment protections for anonymous speech play in encouraging robust public debate and shielding speakers from physical, social, and economic harms, it is of utmost importance that this Court adopts a sufficiently protective standard.

With millions of users between them brief movants are not unlike Google and GoDaddy, the targets of GSB Gold Standard Corporation’s subpoena petition.

Platforms like amici’s are frequently the target of subpoenas and other attempts to identify or “unmask” anonymous online speakers.

Inadequate protections for anonymous online speech would dissuade users from engaging in valuable discourse on platforms like amici’s.

The “definitive standard” brief movants wish New York courts to adopt is the “Dendrite” standard.

The Dendrite factors have been widely adopted by courts around the country—and for good reason.

These factors balance the weighty First Amendment interests involved in such decisions against litigants’ legitimate need for information, ultimately providing courts with a flexible approach that takes into account the interests of the speaker, the litigants, and the public at large. Amici urge this Court to adopt the Dendrite factors in New York.

First Amendment protections for anonymous speech enable millions of people to participate freely in speech online.

Anonymity unlocks valuable and diverse contributions to public discourse by enabling speakers to share ideas without retribution or stigmatization.

When anonymous speakers lose their anonymity, they may face physical, economic, and social harms. These harms lead to chilling effects on all speech.

A legal standard that carefully considers and weighs the First Amendment interests of an anonymous speaker, the public interest, and the strength of a plaintiff’s claim is needed to ameliorate these concerns.

The Dendrite standard does precisely that.

Simply put, the Dendrite standard assists online speech platforms (which, albeit on a much smaller scale and brief movants, BehindMLM nonetheless is), with “defend[ing] their users from meritless or abusive discovery attempts.”

Unmasking even a single instance of a user’s speech can lead to widespread and varied harms, including physical violence, financial loss, and ostracization.

The decision to unmask can lead to the permanent loss of a user’s privacy. And anonymity, once lost, is lost forever.

These harms are particularly concerning because unmasking attempts are frequently levied against protected speech on online speech platforms.

When criticized online, some companies and individuals leverage the legal system to unmask their detractors and silence them.

For example, the sponsor of a screenwriting contest tried to unmask numerous Reddit users who called out his contest as a scam in the subreddit r/screenwriting.

A plastic surgeon who eventually pleaded guilty to conspiracy to commit healthcare fraud frequently attempted to identify and silence his critics on Yelp.

A Georgia dentist who assaulted his patients brought a meritless defamation claim attempting to unmask the YouTube user who posted a video chronicling his story.

Anonymous speakers who are unmasked may face a range of threats, including physical violence. Speakers often must risk their own safety and reputations to criticize powerful institutions and protest injustice.

In one case, an American traveler, Wesley Barnes, was arrested after sharing a critical review of a Thai resort on Tripadvisor.

Mr. Barnes spent two nights in jail in Thailand for his review criticizing a fifteen-dollar uncorking fee for wine.

Unmasked individuals can also suffer economic harms.

People and businesses can use unmasking as an abusive litigation tactic, wielding the legal system to identify their anonymous detractors only to resort to extra-judicial self help.

With unmasking, “more bluntly, the plaintiff can simply seek revenge or retribution”.

Plaintiffs’ decisions to drop lawsuits after unmasking their critics and then retaliating against them is a clear example of using unmasking as an abusive litigation tactic to silence legitimate speech.

Arguing that “New York courts need additional guidance to protect anonymous speakers when making discovery determinations under New York law”, brief movants write;

The only way to ascertain if the petition has a meritorious cause of action when free speech rights are concerned is to perform a balancing test.

The current law needs a balancing component to ensure courts give adequate weight to the speaker’s First Amendment rights while also preserving the ability of plaintiffs to proceed with meritorious cases that do not unduly undermine those rights.

The lack of a balancing test is especially problematic given the fact that unmasking an anonymous speaker because of their speech is irreversible and may lead to serious harm, even if the underlying litigation is ultimately deemed to be meritless.

Adoption of the Dendrite factors would also enshrine the requirement that a prospective plaintiff give notice to an anonymous speaker before seeking preaction disclosure (Dendrite at 764).

Without notice, the adversity necessary to challenge an unmasking subpoena can be critically absent.

While amici give notice to and sometimes defend anonymous users who are at risk of unmasking on their platforms, not all online speech platforms go to the same lengths.

Adopting a notice requirement before an unmasking order is granted would ensure that anonymous speakers are able to seek to protect their rights before they are irreversibly lost.

While courts in other jurisdictions have adopted a number of different tests for identifying anonymous speakers, amici believe this Court should adopt a test that is sufficiently protective of speakers’ interests, the Dendrite factors (Dendrite at 766–772).

Dendrite requires a party to:

1. Provide notice to the impacted speaker and allow a reasonable opportunity for them to challenge their unmasking;

2. identify with particularity the statements made by the anonymous speaker that are at issue; and

3. make a prima facie showing against the anonymous speaker that satisfies the motion to dismiss standard (id. at 760).

If the party has established a prima facie cause of action, the court must then

4. “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 [speaker’s] identity” (id.).

Just so we’re clear with respect to GSB Gold Standard Corporation’s petition;

  1. At no point did BehindMLM have prior notice of proceedings in Germany or in New York (BehindMLM was also not a party to proceedings in Germany);
  2. GSB Gold Standard Corporation has cited statements BehindMLM has made but hasn’t gone into any specific detail as to how the statements are allegedly defamatory (with particularity);
  3.  GSB Gold Standard Corporation has not made a showing that would satisfy a motion to dismiss.

Under the current system in place GSB Gold Standard Corporation doesn’t have to. They’ve obtained an ex-parte decision in Germany and, through the New York Supreme Court, are trying to enforce that on a non-party – crucially without any due process as to the merits of the allegations.

The Dendrite standard thus reflects the value of the First Amendment rights involved by requiring pre-disclosure notice and an opportunity for the targeted speaker to challenge the disclosure.

In cases of both pre-action and post-complaint discovery, Dendrite also protects against abuse by requiring parties seeking unmasking to show they have legitimate claims that would survive a motion to dismiss.

And, most importantly, Dendrite incorporates a balancing test as its final step to ensure that courts consider the irrevocable impact of unmasking while also preserving litigants’ ability to gather needed discovery in legitimate cases.

Requiring that a plaintiff make a prima facie case before unmasking an anonymous speaker is consistent with New York’s disclosure requirements under CPLR 3102 (c).

Aligning with New York’s current practices, Dendrite does not demand more than a plaintiff must already do to state a legally viable claim.

And while doing so, Dendrite protects anonymous speakers from meritless or unsupportable cases or cases where the primary purpose may be to identify the speaker for the purpose of silencing them or otherwise seeking extra-judicial relief.

Concluding their brief, movants write;

Amici urge the Court to adopt the Dendrite factors to determine whether a demand for disclosure warrants the unmasking of an anonymous speaker.

Given the weighty First Amendment interests of both anonymous speakers and the general public, the Court should adopt a test that also incorporates consideration of the public interest in protecting an anonymous speaker’s speech.

This standard should apply to both pre-action and post-complaint unmasking decisions.

Along with a previously filed amicus brief from the Electronic Frontier Foundation, the court approved the Reddit et. al. brief on April 11th.

A hearing with oral arguments in BehindMLM’s appeal against GSB Gold Standard Corporation’s petition is scheduled for May 8th.