H 030767

Krinsky v. Doe 6

H030767

COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT

159 Cal. App. 4th 1154 ; 72 Cal. Rptr. 3d 231; 2008 Cal. App. LEXIS 180; 36 Media L. Rep. 1321

February 6, 2008, Filed

OPINION BY: Elia

OPINION

  ELIA, J.--As Internet technology has evolved over the past two decades, computer users have encountered a proliferation of chat rooms and Web sites that allow them to share their views on myriad topics from consumer products to international diplomacy. Internet bulletin boards, or "message boards," have the advantage of allowing users, or "posters," to express themselves anonymously, by using "screen names" traceable only through the hosts of the sites or their Internet service providers (ISP's). One popular forum is the financial message board, which offers posters the opportunity to communicate with others concerning stock trading, corporate behavior, and other finance-related issues.

The conversation on one financial message board devolved into scathing verbal attacks on the corporate officers of a Florida company, prompting a lawsuit by one of those officers, plaintiff Lisa Krinsky. Plaintiff attempted to discover the identity of 10 of the pseudonymous posters by serving a subpoena on the message board host, Yahoo! Inc. (Yahoo!). Defendant "Doe 6" moved to quash the subpoena, but the trial court denied the motion. Doe 6 appeals, contending that he had a First Amendment right to speak anonymously on the Internet. Under the circumstances presented, we agree with Doe 6 that his identity should be protected and therefore reverse the order.

Procedural History

Until December 31, 2005, plaintiff was the president, chair of the board, and  chief operating officer of SFBC International, Inc., a publicly traded "global development drug service company" with offices in Florida. In January 2006 plaintiff sued 10 "Doe" defendants in a Florida court. In the action plaintiff alleged that defendants had made "defamatory remarks" about her on Yahoo! message boards and other Web sites, using screen names to conceal their identities. During the litigation defendant Doe 6 was often referred to as "Senor_Pinche_Wey," the screen name he had used in posting on the Yahoo! Finance message board. ¹

1   For ease of reference we will use masculine pronouns to refer to Doe 6, as did his attorney in the proceedings below.

Seeking damages and an injunction, plaintiff asserted two causes of action in the Florida complaint. All 10 defendants were accused of intentional interference with a "contractual and/or business employment relationship" between plaintiff and SFBC. Nine of the defendants were accused together of libel based on false and misleading Internet statements imputing dishonesty, fraud, improper professional conduct, and criminal activity to plaintiff.

The record contains copies of the alleged defamatory messages posted on the Yahoo! message board devoted to SFBC. Most of the posts derided another SFBC executive, "Jerry 'Lew' Seifer." ² Doe 6 called Seifer a "mega scum bag" and a "cockroach" and suggested that there were more "cockroach" executives at the company after Seifer resigned. In one message, posted on December 18, 2005, Doe 6 purported to find it "funny and rather sad that the losers who post here are supporting a management consisting of boobs, losers and crooks. (Krinsky, Natan and Seifer) while criticizing a charitable and successful hedge fund manager, who, unlike his critics and the longs here, has done his homework." In a December 30, 2005 post, Doe 6 offered his so-called "Jerry 'Lew' Seifer's New Year's resolutions." The list included the following statement: "I will reciprocate felatoin [ sic] with Lisa even though she has fat thighs, a fake medical degree, 'queefs' and has poor feminine hygiene." ³

2   Seifer was a vice-president of legal affairs at SFBC, who apparently resigned in mid-December 2005.

3   At the hearing on Doe 6's motion to quash, his attorney and the court assumed that "felatoin" was a misspelling of the word "fellatio."

In order to serve the proper defendants, Krinsky served a subpoena on the custodian of records at Yahoo! in Sunnyvale, California. Yahoo! notified Doe 6 that it would comply with the subpoena in 15 days unless a motion to quash or other legal objection was filed. Doe 6 then moved in superior court to quash the subpoena on the grounds that (1) plaintiff had failed to state a claim sufficient to overcome his First Amendment rights for either defamation or interference with a contractual or business relationship, and (2) plaintiff's request for injunctive relief was an invalid prior restraint.