Anonymous Web Editor Defeats Unmasking Effort

National Law Journal
June 2, 2014

A Washington attorney suing an anonymous Wikipedia editor for defamation can’t force the editor to reveal his identity, the District of Columbia Court of Appeals ruled late last week.

Susan Burke, a solo practitioner, sued two anonymous Wikipedia editors she accused of posting defamatory information about her on a Wikipedia page. One of the editors, known only as Zujua, fought Burke’s subpoena for his identity; the other did not participate in the case.

A three-judge appeals panel ruled on March 29 that the trial judge was wrong to give Burke the go-ahead to unmask Zujua. The editor fought the subpoena under a District law aimed at shielding protected speech from lawsuits, known as the anti-SLAPP law (strategic lawsuits against public participation.) The law gives defendants in these cases an early route to dismissal.

Burke’s lawyer, William O’Neil of The O’Neil Group, said he and Burke hadn’t decided whether to ask the full court to reconsider the decision. Zujua’s lawyer, Christopher Hajec of The Center for Individual Rights, said the ruling was “good for free discussion on the Internet.”

Burke’s case was the latest in a string of lawsuits testing how the local courts in the District should apply the anti-SLAPP law, which took effect in March 2011. In Burke’s case, the appeals court ruled for the first time that anonymous defendants who fail to defeat a subpoena for their identity after invoking the anti-SLAPP law can immediately appeal—a ruling First Amendment advocates pushed for as an important safeguard.

Delaying the review of a decision to reveal an anonymous speaker’s identity “would result in the irreversible loss of the anonymity that the Anti-SLAPP Act specifically seeks to protect,” Judge Catharine Easterly wrote. “As a result, those who would speak out anonymously might choose not to speak at all.”

Burke sued over edits to a Wikipedia page about Burke that included information on a civil lawsuit she brought against private security contractor Blackwater Inc., now known as Academi LLC, on behalf of the families of victims of shootings in Iraq. The case settled in 2010. Around the same time, the U.S. Department of Justice was pursuing criminal charges against Blackwater guards for the killing of Iraqi civilians.

Zujua and the other editor, referred to as CapBasics359 in court papers, added language to Burke’s Wikipedia page incorrectly tying a negative ruling by a judge in the criminal case—which didn’t involve Burke—to the civil litigation. Burke said in court filings she suspected Blackwater was involved.

To win his fight against Burke’s subpoena, Zujua had to show the speech at issue concerned “issues of public interest.” The appeals court agreed with Zujua that Burke was a “limited purpose” public figure. Besides her involvement in high-profile litigation, Easterly wrote that Burke “went above and beyond simple legal representation in court pleadings and appearances,” noting she sought publicity by publishing press releases and giving interviews.

The court found Burke failed to show she was likely to win the merits of her lawsuit—another standard for proceeding with the subpoena. As a public figure, Burke had to show not only that the statements on the Wikipedia page were defamatory, but also that Zujua acted with “malice.”

The court concluded Burke failed to meet the malice standard. The changes to her Wikipedia page reflected a lack of basic understanding of the differences between civil and criminal litigation, the court said.

“Zujua’s edits do not suggest knowledge of falsity or reckless disregard for whether or not the statement was false,” Easterly wrote. “If anything, the edits seem to suggest confusion or honest mistake on Zujua’s part.” The judge added that Burke admitted Zujua didn’t try to re-publish the information after Burke alerted him to the error.

O’Neil said requiring a plaintiff to prove malice in a case such as Burke’s without knowing the identity of the speaker would be “nearly impossible.”

Easterly acknowledged in her opinion that it would be difficult for plaintiffs to prove malice. “It is not impossible, however, and the circumstances of the alleged defamation may well demonstrate malice,” she said.

“Like any public figure, Ms. Burke has exposed herself to comment and criticism by virtue of the prominent role she has assumed in this controversy,” Easterly wrote. “While that does not mean that she may be defamed freely … it does mean that she must satisfy the test imposed by the Supreme Court in order to protect the “breathing space” of the constitutional freedom of expression.”

Senior judges Frank Schwelb and Michael Farrell also heard the case.

Contact Zoe Tillman at ztillman@alm.com. On Twitter: @zoetillman.