Subject: Protection of Anonymous Internet Speakers The Appellate Division of the New Jersey Superior Court has just handed down a terrific opinion protecting the right of internet speakers to post their criticisms anonymously. As the first appellate court in the country to address this issue, it is to be hoped that this opinion will have broad influence, and that businesses that think they can easily unmask their critics by simply filing a lawsuit and expecting the names to fall into their laps will be discouraged from suing unless they have good reason to think that they can succeed on the merits.
In Dendrite International v. Doe, a three judge panel, in a unanimous opinion written by Judge Robert Fall, upheld the decision of Superior Court Judge Kenneth MacKenzie to deny Dendrite the opportunity to identify an anonymous critic who challenged the company for changing its revenue recognition policies to show immediate benefits for the bottom line, and who sneered at the CEO for unsuccessfully trying to sell the company. Judge MacKenzie found that, even if all the other elements of a defamation case were met by the plaintiff's evidence, there was no hard evidence that the company had been harmed by these posts.
In affirming, the appellate court enunciated firm guidelines for trial courts to follow when confronted by a subpoena at the outset of a case seeking to identify anonymous internet posters so that the lawsuit can proceed against them. The court should first require the plaintiff to attempt to notify the anonymous posters that their identities are being sought and give the defendants an opportunity to oppose the request. The plaintiff must identify the exact statements alleged to be unlawful. The court must then decide both whether the complaint states a valid claim for relief and whether the plaintiff has enough evidence to support its claim. Finally, if these first three criteria are met, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the case and the necessity for identifying the poster.
The court found that this test was needed to "strike a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation [against] actionable conduct of anonymous, fictionally named defendants." Applying the test, the court agreed with Judge MacKenzie that there was insufficient evidence of harm, and did not find it necessary to decide whether there was sufficient evidence to meet the actual malice or other elements of a defamation claim.
In a recent court appearance, Yahoo! told a California superior court judge that it receives "thousands" of such subpoenas; and AOL recently told a Pennsylvania court that in the year 2000 alone, it received 475 civil subpoenas, "the vast majority of them" seeking to identify its subscribers. Thus, the development of standards for adjudicating these subpoenas is a critical task for the courts, and the first appellate opinion could go a long way to assuring internet correspondents that their identities can remain confidential so long as they do not violate the rights of the persons whom they criticize.
The opinion will be posted on our web site later today at http://www.citizen.org/litigation/briefs/dendriteappeal.pdf
Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009