Case of the Day: In re Gianasso

The case of the day is In re Gianasso (N.D. Cal. 2012). According to the application, the website published an article by an anonymous commenter, “IATA Anonymous”, that defamed the applicant, Guido Gianasso. Gianasso made a criminal complaint against “IATA Anonymous” in Switzerland, and the Geneva Airport Security Authority opened a criminal investigation. Gianasso sought leave to issue a subpoena to in order to obtain the identity of “IATA Anonymous” in aid of the Swiss criminal case, as well as a Swiss civil case he intended to bring.

The judge found that the statutory prerequisites were met. The only one worth mention is Gianasso’s status as an “interested person.” The court cited Intel for the proposition that a complainant who asks a foreign tribunal to take administrative action against another party can be an interested person, even if the complainant has no role (beyond making the initial complaint) in the administrative proceedings. The judge’s decision suggests that the same rule should apply to foreign criminal proceedings.

The judge noted that under the Cable Privacy Act, after issuance of the subpoena, IATA Anonymous will have an opportunity to seek to quash the subpoena. I can’t predict what will happen, but if I were IATA Anonymous’s lawyer, I would be looking for ways to argue that the public policy embodied in the SPEECH Act (which we discussed in April 2011) provides a discretionary basis for denying judicial assistance. The Act bars recognition of foreign defamation judgments inconsistent with the First Amendment, but it does not have any provisions aimed at limiting the scope of judicial assistance in such cases. But I question whether a US court should provide judicial assistance aimed at helping a foreign plaintiff make a criminal defamation case against a defendant, particularly where the supposedly defamatory statements were published on a US website.

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