Appeals court affirms right to anonymity online

From the Summer 2001 issue of The News Media & The Law, page 18.

A New Jersey appellate court refused to unmask an anonymous Internet speaker and provided free speech-friendly guidelines to trial courts faced with subpoenas whose goal is to expose anonymous speakers.

The Superior Court of New Jersey, Appellate Division in Trenton upheld a Morristown, N.J., judge’s December 2000 ruling that the identity of Yahoo! message board posters should not be disclosed to Dendrite International. (See NM&L, Winter 2001)

“It is well established that rights afforded by the First Amendment remain protected even when engaged in anonymously,” Judge Robert Fall wrote in the July 11 opinion. Fall also said “the New Jersey Constitution’s right of free speech is broader than the right against governmental abridgement of speech found in the First Amendment.”

The decision was immediately heralded by speech advocates as a victory for anonymous speech, one that lay down guidelines that companies seeking to unmask critics will find difficult to overcome.

The case was one of many cases over the last several years involving corporations attempting to discover the identity of someone who made comments on the Internet. Plaintiff companies call them “cybersmear” cases and claim that false and malicious statements on the Internet can send stock prices into an unwarranted free fall. Privacy groups call them “John Doe” cases and contend that many of the lawsuits are filed solely to discover the identity of the speaker and punish him through means other than the court system, such as terminating his employment.

Dendrite International, a pharmaceutical and consumer package goods company, alleged in a May 2000 complaint that four anonymous message board posters made false statements, violated employment agreements and published secret information. The company sought to discover the identity of the pseudonymous speakers from Yahoo!.

In June 2000, a state court first required Dendrite to post a notice on the message board where the objectionable material was first published. The court required the notice to allow the speaker an opportunity to fight the subpoena if the service provider would not. Without such notice, the speaker might never know that the service provider was releasing his identity. This step is the sort of civil procedure measure that speech advocates claim is required before an anonymous speaker should be unmasked.

The next month, after a hearing to determine whether Dendrite could subpoena the Web service to find the users’ identities, Judge Kenneth C. MacKenzie ruled that the online postings constituted published, defamatory statements, and at least two were sufficiently false. However, the judge ruled that the company failed to demonstrate that the posted messages effected the stock price, and as a result, Dendrite did not suffer any harm. Without damages, the company had no recourse.

In addition to agreeing with the trial court that Dendrite’s claim was insufficient because it failed to demonstrate harm, the appellate court also issued guidelines to help trial courts determine whether they should permit anonymous speakers to be unmasked. The court here said trial courts should require plaintiffs to notify the anonymous posters that they are the subject of a subpoena and identify the allegedly offensive statements. This notice would tip off the speaker to the attempt to unmask him and give him a chance to fight the subpoena.

“These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board,” Judge Fall wrote in the opinion.

Before a court should unmask an anonymous speaker, it should also find that the plaintiff has made a prima facie case for each element of its cause of action. Finally, Fall ruled, the trial court must “balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.”

“Judge Fall has set an important precedent protecting the free speech rights of all Internet posters,” said Paul Levy, an attorney who filed a friend of the court brief on behalf of Public Citizen and the ACLU. “He established tough standards that we hope other courts will follow.” — DB