Archives

Case of the Day: Comcast v. Hourani

The case of the day is Comcast Cable Communications, LLC v. Hourani (D.D.C. 2016). Issam Hourani was plaintiff in a libel action in England against PsyberSolutions LLC, Allison Blair, Alistair Thomson, and Bryan McCarthy. The claim was that the defendants had falsely asserted that Hourani was involved in the abduction, torture, rape, and murder of Anastasya Novikova in Beirut in 2004. The English complaint alleged that the defendant published the allegedly libelous statements on Facebook, Twitter, and YouTube. Hourani claimed that an unknown Comcast subscriber using a computer with a particular IP address was “hired to stage fake performances to defame and cause harm” to him and to “film the performances to be uploaded onto websites and social media sites.” In 2015, the English court ordered Comcast to disclose to Hourani the identity of the users of a particular IP address.
Continue reading Case of the Day: Comcast v. Hourani

Case of the Day: In re Application for Appointment of Commissioner

The case of the day is In re Application for Appointment of a Commissioner re Request for Judicial Assistance (N.D. Cal. 2011). It involves a request by a Spanish plaintiff for issuance of a subpoena to WordPress.com and Automattic, Inc., which, incidentally, do a great job hosting Letters Blogatory. The applicant was Yamaha Motor España, S.A., which was a defendant in two Spanish labor disputes pending in Barcelona. The labor disputes erupted after Yamaha announced plans to close a Spanish plant.

Yamaha asserted that “nocierre”, an anonymous blogger who blogs at january26th.wordpress.com, had published “false and misleading” postings and had referred in the posts to work slowdowns that, it says, would be illegal under Spanish law (the union denied orchestrating a slowdown). Yamaha claimed that the posts could be offered as evidence in the Spanish proceedings to rebut the union’s assertion that it had not organized a slowdown. WordPress refused Yamaha’s request to disclose the identity of “nocierre” and refused Yamaha’s request to take down the blog on the grounds that it contained defamatory material. Yamaha then asked the federal court to issue a subpoena to WordPress for the identity of nocierre. The court, correctly in my view, found that the statutory prerequisites for issuance of the subpoena were satisfied and that the Intel factors favored issuance of the subpoena. As we noted in the discussion of CTB v. Twitter, the Stored Communications Act does not protect user identities or other non-content information. Yamaha also asked for and received a ruling that the subpoena was permissible under the Cable Privacy Act, 47 U.S.C. § 551. Under § 551(c)(2)(B), personally identifiable information may be disclosed pursuant to a court order, “if the subscriber is notified of such order by the person to whom the order is directed.” So as Yamaha says, there doesn’t seem to be a Cable Privacy Act issue here. I wonder, however, whether WordPress is a “cable operator” within the meaning of the statute, or whether this was overkill on Yamaha’s part. I don’t know enough about WordPress’s business to say.

More importantly, I think, as I indicated in the post on the CTB case, that there are significant First Amendment issues about the right (or lack of a right) to anonymity, and that Yamaha should expect a fight. Both WordPress and “nocierre” will have an opportunity to object to providing the requested information after the subpoena issues.