Yet Again, Someone Trying to Vanish My Post About a Case on One-Sided Pseudonymity
In February, I wrote about a Fourth Circuit decision in Doe v. Sidar, which discusses one-sided pseudonymity. Today, I see that Google received yet one more request that it remove that post from its indexes, and thus vanish it from search results. That’s the fourth attempt so far aimed at that particular post; I’ve written about the first three here and here. The request’s theory is that the post violated the copyright in a tumblr post, https://www.tumblr.com/case49news/745091056157196289/fourth-circuit-on-one-sided-pseudonymity-in-sexual:
Re: Unknown
NOTICE TYPE:DMCACopyright claim 1
KIND OF WORK: Unspecified
DESCRIPTION[:] [REDACTED]
ORIGINAL URLS: https://www.tumblr.com/case49news/745091056157196289/fourth-circuit-on-one-sided-pseudonymity-in-sexual
ALLEGEDLY INFRINGING URLS: https://reason.com/volokh/2024/02/21/fourth-circuit-on-one-sided-pseudonymity-in-sexual-assault-cases/
JURISDICTIONS[:] PT
But actually the tumblr post is a copy of my post, not vice versa. Indeed, the tumblr post talks about and quotes what it refers to as “my amicus brief” in the case; that’s my brief, which court records show was written by me, and not a brief written by the blogspot post’s author.
This appears to be a known sort of deindexing trick, which I discussed at pp. 300-01 of my Shenanigans (Internet Takedown Edition) piece, and which has been known as far back as 2016, see this Tim Cushing (TechDirt) piece, and likely even earlier. (Again, I say “appears to be” just because the blogspot.com post has been deleted, so I can’t verify this, but this seems very likely to be so based on the similarities to what I described here.) Fortunately, it appears that Google has not acted on this request, and I expect that it will not.
I unfortunately can’t tell who is behind this; some deindexing requests have submitters’ names attached, but those could be just as fake as the rest of the request, and in any case this one was marked “[REDACTED],” whether by Google or by Lumen. But in any event, I thought I’d mention what’s going on here. For those curious to see what someone wants to hide, I copy my original post below.
[* * *]
[Title:] Fourth Circuit on One-Sided Pseudonymity in Sexual Assault Cases
[Subtitle:] The decision allows such pseudonymity when the defendant has already been found (by default judgment) to have committed the assault, but Judge Wilkinson’s concurrence argues that, absent this unusual factor, one-sided pseudonymity should be frowned on.
From today’s Fourth Circuit opinion in Doe v. Sidar, written by Judge Toby Heytens and joined by Judges Robert Bruce King and J. Harvie Wilkinson:
A woman sued a man for sexually assaulting her and used a pseudonym throughout discovery. After the man refused to comply with its discovery orders [including by failing to provide a DNA sample], the district court entered a default judgment against him and ordered the woman to use her real name going forward. The woman appeals the district court’s non-anonymity order …. [W]e hold the district court committed legal error by understating the woman’s interest in anonymity, appearing to announce a general rule that fairness considerations invariably cut against allowing a plaintiff to be anonymous at trial unless the defendant is also anonymous, and failing to recognize the significance of its default judgment on liability….
Because the district court entered a default judgment on liability, we treat it as conclusively established that Cenk Sidar raped Jane Doe in London in September 2017. As this Court has explained, “[t]he legal effect of a default judgment is that the defendant is deemed to have admitted the plaintiff’s well-pleaded allegations of fact … and is barred from contesting … the facts thus established.” …
The trial court refused to allow Doe to proceed pseudonymously, and the Fourth Circuit held that this decision was mistaken. The Circuit acknowledged that pseudonymity is an exception, available only in rare cases. But it noted that lawsuits brought by rape victims are one category of cases in which plaintiffs can often proceed pseudonymously, to protect their privacy. And it held that the trial court wrongly concluded, among other things, that one-sided pseudonymity—pseudonymity for plaintiff when the plaintiff has named the defendant—is impermissible:
[The] entry of a default judgment tipped powerfully in Doe’s favor…. That Sidar has already been found liable for raping Doe and that further proceedings will be limited to determining the damages he must pay significantly reduces any “risk of unfairness to” Sidar resulting from Doe’s continued anonymity.
To see why, consider two sources of potential unfairness when a plaintiff seeks to proceed anonymously while making allegations against a known defendant. For one, there is a concern that anonymity may serve as a “shield behind which” false or “defamatory charges may be launched without shame or liability,” thus creating the risk a blameless defendant will suffer embarrassment and reputational damage merely by being sued. There is also the one-sidedness of allowing a plaintiff to “have [their] cake and eat it too” by gaining the ability to stay anonymous if they lose—thus avoiding reputational harms from disclosing the underlying facts or bringing an unsuccessful lawsuit—while retaining the power to reveal their identity if they win.
Those risks evaporate once liability has been established. At this point, Doe is not seeking to keep her identity secret because she fears she might lose this case. There is also no risk Sidar’s reputation will be damaged by false accusations of wrongdoing. The district court’s default judgment conclusively establishes that Doe is a victim and Sidar raped her, and nothing that happens at a damages-only trial can change that.
The district court’s default judgment also reduces the risk that Sidar would suffer any unfair prejudice at trial. Where liability has not been established, there is at least some risk that jurors may view a decision to let one side proceed anonymously as suggesting that the anonymous party’s claims are valid or that it has the better case than the non-anonymous party. See James v. Jacobson (4th Cir. 1993) (recognizing the “concern that the jury’s very knowledge that pseudonyms were being used” could “tend to validate” the plaintiff’s claims); see also Doe v. Ayers (9th Cir. 2015) (noting “risk that the … use of pseudonyms might prejudice the jury” in the anonymous party’s favor). But any such concerns are weakened—if not eliminated—here because the jury will have no need to guess about the court’s view of the merits of Doe’s claims. Instead, the court will tell the jury that Doe’s claims succeed as a matter of law and that the jury may not revisit that issue. It is hard to see how Sidar will suffer any extra prejudice from letting Doe use a pseudonym in a case where the jury will be told it must take as a given that he raped her….
The court didn’t opine about how the privacy interests of the rape victim would stack up against the concerns about fairness to the defendant in the more typical scenario, where there was no judgment of liability against the defendant (as indeed there wasn’t for the first stage of this very case). But Judge J. Harvie Wilkinson’s concurrence made the argument against one-sided pseudonymity in at least many such cases:
I appreciate especially [the majority’s] recognition of the potential for pseudonymous litigation to “undermine[] the public’s right of access to judicial proceedings” and how “disclosing the parties’ identities furthers openness of judicial proceedings.”
Transparency is not only important for its own sake. It is integrally linked to the need of courts to maintain public trust. We are reliant in the first instance on the executive to enforce our judgments. And ultimately, we are reliant on the public’s trust in the process by which those judgments are reached.
To reduce litigants to “Does” and initials risks making of them stick figures and algebraic symbols. To forsake real names is to put the judicial proc
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