Legal Protections for Anonymous Speech in Virginia

Note: This page covers information specific to Virginia. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

The one notable Virginia court decision on online anonymity -- In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000), rev'd in part on other grounds, 542 S.E.2d 377 (Va. 2001) -- applied a low-burden "good faith" test before unmasking an anonymous Internet speaker. This is the weakest or most lenient standard for determining whether disclosure of identity is warranted.

Several unknown Internet users made comments in a chat room about a company, which itself chose to remain anonymous in the subsequent litigation. The company sued the anonymous posters in Indiana, alleging that they had defamed the company and revealed confidential insider information. The company knew that the posters had used AOL email addresses, so it subpoenaed AOL in the Virginia Circuit Court in Fairfax County for information that would reveal the identity of the posters. AOL filed a motion to quash the subpoena.

The court announced a standard for determining when a court should require an ISP to disclose information revealing the identity of an anonymous poster. The court required the plaintiff to satisfy the following three requirements: (1) the court must be satisfied by the pleadings or evidence supplied to it that (2) the party requesting the information has a legitimate, good faith basis for its claim, and (3) the defendant's identity must be central to the claim. The court reviewed the pleadings in the Indiana lawsuit, as well as the Internet postings involved, and concluded that the company had satisfied its burden. Accordingly, it denied AOL's motion to quash the subpoena.

As an important postscript, the anonymous company appealed another aspect of the decision, and the Supreme Court of Virginia reversed the lower court's decision in America Online v. Anonymous Publicly Traded Company, 542 S.E. 2d 377. However, the Supreme Court of Virginia did not disagree with the lower court's application of the good faith test, but rather with other aspects of the decision that are not relevant here. Therefore, the good faith standard of the AOL case still appears to be the prevailing standard in Virginia. This is an old decision, however, which has been subject to criticism by other courts, and it is hard to predict how a Virginia court would respond in a new lawsuit.