Nevada Court Decision in Climate Blogger's Doxing Lawsuit Against Daily Kos

From Watts v. KOS Media LLC, decided Tuesday by the Nevada Court of Appeals (Chief Judge Bonnie Bulla, joined by Judges Michael Gibbons and Deborah Westbrook):

Watts sued respondent KOS Media LLC, alleging that it was liable under NRS 41.1347 (Nevada’s anti-doxing statute) for posting and/or facilitating the posting of an article that allegedly contained Watts’ personal identifying information on its website “The Daily KOS.” The post, entitled: “Heartland Fundraising for Tony Watts’ $2,000 Thermometers to Compete with Global Temp Network,” was made by a user named “ClimateDenierRoundup” and contained links to the Zillow listing for Watts’ Nevada residence, as well as its location on Google Maps.

Watts alleged that, due to his status as a well-known climate pundit, the release of his address on the internet increased his risk of death or bodily injury by climate activists, allowing him to recover damages and reasonable attorney fees and costs. Watts later filed a first amended complaint, which included alternative allegations that KOS either posted the article itself through an employee, or “aided and abetted” a third party in creating the article and knew that it contained personal and potentially harmful information prior to posting….

The trial court dismissed this claim, “under NRS 41.1347(6), which provides that ‘[t]his section must not be construed to impose liability on any interactive computer service for any content provided by another person,’” but the appellate court concluded this was premature:

While Watts did include allegations in his complaint that indicated KOS aided and abetted a third party in posting the article; he also included an alternative theory, namely that “an individual associated with or employed by KOS Media LLC, and not a third party posted the content” alongside several other references noting that KOS “created” or “supplied” the content that disseminated his personal identifying information. Further, Watts’ complaint also includes allegations that the disclaimer on the KOS website {“[t]his content is not subject to review by Daily KOS staff prior to publication”} is incorrect, and that “KOS staff has reviewed the subject posting prior to publication and/or after, calling the disclaimer into question.”

Because this alternative theory of liability posits that KOS itself, not a third party, disseminated Watts’ personal identifying information, we conclude the district court erred when it determined that KOS is entitled to statutory immunity under NRS 41.1347(6) at this stage of the process. When treating this allegation as true, KOS fails to demonstrate that the content at issue here was “provided by another person” as required for immunity under the statute.

The court therefore allowed the case to go forward (though of course ultimately KOS might well prevail, for instance if the post was indeed put up by an unrelated third party).

The Nevada doxing statute allows lawsuit by one person against some “other person” when

(a) The other person disseminates any personal identifying information or sensitive information [defined as sexual orientation, transgender status, or HIV status] of the person without the consent of the person, knowing that the person could be identified by such information:

(1) With the intent to aid, assist, encourage, facilitate, further or promote any criminal offense which would be reasonably likely to cause death, bodily injury or stalking; or

(2) With the intent to cause harm to the person and with knowledge of or reckless disregard for the reasonable likelihood that the dissemination of the information may cause death, bodily injury or stalking; and

(b) The dissemination of the personal identifying information or sensitive information:

(1) Would cause a reasonable person to fear the death, bodily injury or stalking of himself or herself or a close relation; or

(2) Causes the death, bodily injury or stalking of the person whose information was disseminated or a close relation of the person.

It also provides exceptions for dissemination:

(a) For the purposes of reporting conduct reasonably believed to be unlawful;

(b) Which depicts a law enforcement officer acting under the color of law or an elected officer of the State of Nevada or any of its political subdivisions acting in an official capacity;

(c) Gathered in the exercise of the constitutionally protected rights of freedom of speech and assembly; or

(d) Which is a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern[, meaning] {

1. Communication that is aimed at procuring any governmental or electoral action, result or outcome;
2. Communication of information or a complaint to a Legislator, officer or employee of the Federal Government, this state or a political subdivision of this state, regarding a matter reasonably of concern to the respective governmental entity;
3. Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law; or
4. Communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,
5. which is truthful or is made without knowledge of its falsehood.}

I think there are good arguments that statutes such as this are unconstitutionally overbroad and vague, but in this appeal KOS Media only raised the service provider immunity argument.

Jeffrey Dickerson represents Watts.

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