Monday, October 3, 2016
C.A. Tosses Order to Disclose ‘Revenge Porn’ Plaintiff’s Identity
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district has overturned an order that would have forced the plaintiff in a “revenge porn” case to file papers and pleadings under his true name.
The temporary, unauthorized disclosure of the true name of the plaintiff, who sued as John Doe, on the Los Angeles Superior Court website did not justify Los Angeles Superior Court Judge William Fahey’s ruling, Justice Victoria Chaney wrote Thursday for Div. One.
The plaintiff filed suit in January, six months after Civil Code §1708.85 took effect. The law creates a private cause of action “against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages.”
John Doe Suits
The statute expressly permits the plaintiff to sue as John Doe, Jane Doe, or Doe, and to have personal identifying information remain hidden from public view by filing a Judicial Council MC-125 “confidential information form.”
In John Doe’s complaint against Poulet Nikolay, Doe accused the defendant of distributing or threatening to distribute to the plaintiff’s employer images of the type described in the statute. In petitioning the Court of Appeal for writ relief from Fahey’s disclosure order, Doe alleged that an April 8 status conference, the judge asked the court clerk to determine whether the MC-125 was posted online.
When the clerk confirmed that it was, the judge ordered that “all future pleadings are to be filed with the true name of the parties.”
Five days later, John Doe challenged the order by writ petition to the Court of Appeal, which granted a stay and ordered that the plaintiff’s true name not appear on any document posted to the website pending resolution of the petition. Neither the superior court nor the defendant responded to the appellate panel’s invitation to brief the issue of whether the order violated the statute.
Chaney Thursday rejected the trial judge’s rationale for disclosure, that once the information was posted on the court’s site, the plaintiff’s need for confidentiality was obviated.
“This…is not a circumstance in which a party waived a right to keep information confidential or sealed by inadvertently disclosing it,” the justice explained. “…The superior court, rather than a party, caused the temporary disclosure of Doe’s confidential information by mistakenly posting it on the court’s Web site. Further, the superior court’s April 8 order would compound the harm to Doe by taking the erroneous disclosure of the Confidential Information Form MC-125, in which some confidential information appears solely in the body of the document, and using the court’s mistaken disclosure to justify an order that all future filings, including documents that will result in Doe’s name becoming searchable online, include Doe’s true name. This would defeat the objective of the Legislature in adopting section 1708.85.”
The plaintiff is represented by Kelly F. Ryan and Nathaniel P. Loakes of the Ryan Law Firm.
The case is Doe v. Superior Court (Nikolay), 16 S.O.S. 4925.
Copyright 2016, Metropolitan News Company