Court OKs subpoenas to unmask Diet Madison Avenue

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Ralph Watson is suing Diet Madison Avenue for defamation and his former employer, Cripsin Porter & Bogusky, for wrongful termination.
Ralph Watson is suing Diet Madison Avenue for defamation and his former employer, Cripsin Porter & Bogusky, for wrongful termination.

Diet Madison Avenue could soon be unmasked.

Los Angeles Superior Court Judge Monica Bachner has signed an order allowing the legal team for former CP&B Boulder Chief Creative Officer Ralph Watson to serve business record subpoenas to Instagram, its parent Facebook and Gmail (part of Alphabet-owned Google) to provide identifying information about the anonymous individuals behind Diet Madison Avenue.

The judge's action is the latest development in a suit filed by Watson in May, claiming defamatory statements posted to the account led to his wrongful termination from the agency. DMA has taken aim at some of the biggest names in advertising with a goal of exposing sexual harassment and discrimination at ad agencies.

Following the lawsuit against it in late May, Diet Madison Avenue launched a GoFundMe page for its legal expenses, with a goal of raising $100,000. As of Thursday, it had raised $1,970.

The lawsuit states that the plaintiff believes the DMA account is run by at least 17 individuals "with assistance from at least another 42 individuals." The suit cites Instagram's privacy policy, which states the platform may access, preserve and share a user's information in response to a legal request or when Instagram believes that is necessary to detect, prevent and address fraud and other illegal activity.

The media office for the Superior Court of California County in the County of Los Angeles, where the suit was filed, confirmed that an order granting an application to serve business record subpoenas to ascertain the anonymous individuals behind Diet Madison Avenue had been filed on Monday. According to the Superior Court's website, the court granted the order to serve the business record subpoena to Facebook/Instagram and Gmail in a proceeding Monday morning.

Watson's attorney, Michael Ayotte of the Law Offices of Michael W. Ayotte in Hermosa Beach, California, published the subpoenas on his Instagram page, tagging Diet Madison Avenue's Instagram page. The order — granting plaintiff Watson leave to serve subpoenas to Instagram, Facebook and Alphabet — was also published on Ayotte's Instagram page. The order indicates Diet Madison Avenue would be notified by direct messaging its Instagram account and via a Gmail account.

"The court has determined that good cause has been shown … to allow Plaintiff to serve limited and specific business records' subpoenas to the above-listed entities," says the order, signed July 30 by Judge Bachner. "The court has further determined that Plaintiff has demonstrated a prima facie case of defamation necessary at this stage in the proceedings to compel disclosure of the identities of the anonymous individuals behind Diet Madison Avenue."

Last year, a California state appeals court handed down its decision that Yelp needed to turn over documents that could identify an anonymous user who was accused of defaming an accountant in a review on its website. The appellate court in that case said plaintiffs seeking to unveil anonymous posters needed to make a "prima facie" case that shows anonymous statements are libelous and that the plaintiff can't pursue claims without establishing a poster's identity.

The subpoenas related to the Watson vs. Diet Madison Avenue case request from Instagram and Facebook any and all records or identifying information of any individual or individuals for the Instagram account Diet Madison Avenue (@dietmadisonave), saying that this includes but is not limited to first and last names, addresses, IP addresses and IP logs of any and all posters on the account from October 1, 2017 through the present. The subpoena to Alphabet asks for any identifying information about individuals using three different Gmail accounts from October 1 of that year.

The subpoenas ask that Instagram, Facebook and Alphabet provide records for examination by August 31. The documents say if the recipient is a party to the records requested, they must file a motion to quash or modify the subpoena and give notice of that motion to the witness and the deposition officer named in the subpoena at least five days before that deadline. If the recipient is not a party to the action, the recipient must serve a written objection to the requesting party and witness before the date set for production of the records.

Individuals from Instagram, Facebook and Alphabet did not immediately respond to emailed requests for comment. Diet Madison Avenue did not respond to requests for comment sent via Instagram direct message and multiple Gmail accounts.

Brookyn Law School professor Jonathan Askin, a founder and director at the Brooklyn Law Incubator & Policy Clinic, said there might be a move toward no longer protecting platforms from liability for certain online content.

"In the wake of a seeming proliferation of online defamation, cyber-bullying, revenge porn, and 'fake news,' we are witnessing a backlash against unfettered posting of online content," he said in an email. "We see Facebook beginning to take steps to curb perceived abuses of the platform by purveyors of fake news, defamatory, or derogatory content. These actions will likely eviscerate some of the existing protections that have protected such platforms from liability."

Askin added: "I think we might begin to see government revisit the concept of a 'fairness doctrine,' but this time for internet content platforms. Until 1987, the Fairness Doctrine required broadcasters present controversial issues of public importance in an honest, equitable, and balanced manner."

"Now that the social network platforms are the place where we get most of our news, I think it is possible that governments will start to impose requirements that these platforms take steps to ensure the audiences receive access to content that is delivered in an honest, equitable, and balanced manner."

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