Judge says person who criticized Jehovah’s Witnesses online may remain anonymous

A dissident Jehovah’s Witness who posted content from the religion’s magazine in order to stir criticism acted legally and can remain anonymous, a federal judge in San Francisco has ruled.

The displays were posted in August 2018 on a Reddit website devoted to discussion and criticism of Jehovah’s Witness practices. They showed two pages from the religion’s Watchtower magazine: an ad, quoting the Bible and seeking donations, and a chart describing the types of information collected by the religion’s Watch Tower Bible and Tract Society.

The poster, a lifelong Jehovah’s Witness who lives abroad and was identified only as Darkspilver, said the ad showed a commercialized approach to fundraising, and the chart raised privacy questions. In court papers defending anonymity, Darkspilver said critical voices in the faith, once identified, are often “disfellowshipped,” or excommunicated, an act that could damage relationships with family and friends.

Watch Tower, which publishes the magazine, said the postings violated its copyright. It did not sue Darkspilver or Reddit, but sought a court subpoena, in Reddit’s hometown of San Francisco, to disclose the poster’s identity.

U.S. Magistrate Sallie Kim ruled last May that Darkspilver had a right to speak anonymously and had shown a likelihood of harm from public identification. She said the poster — to whom she referred as “he,” because the legal papers were filed under the name of “John Doe” — had displayed the pages for a noncommercial purpose and did not harm the publication’s value.

But Kim also said Watch Tower’s copyright case was not entirely baseless, and that its lawyers should learn Darkspilver’s identity as long as they did not disclose it to anyone else.

Darkspilver appealed, with support from the privacy-rights group Electronic Frontier Foundation, and won a ruling Monday from U.S. District Judge James Donato.

Donato agreed with Kim that the postings were protected by “fair use,” a law that allows republication of copyrighted material for such purposes as criticism, comment, news reporting, and teaching or research. He said the ad and chart were not creative works and had no independent market value, and were used by Darkspilver solely for “criticism and commentary,” not for commercial purposes.

Watch Tower contended the postings might have discouraged visitors to its website, but the religious organization presented no evidence of any such effect, which in any event would not have harmed its copyright, Donato said.

And because Darkspilver’s postings were entirely “fair use,” the judge said, “he did not infringe Watch Tower’s copyrighted works, and there is no basis in the (copyright law) for a subpoena to compel disclosure of his identity.”

The Electronic Frontier Foundation’s legal director, Corynne McSherry, said Tuesday the claim of infringement “was absurd from the start.” The subpoena process “is not supposed to be a pretext for unmasking lawful speakers,” she said.

Paul Polidoro, a lawyer for Watch Tower, said the organization disagreed with the ruling and would be considering its options.