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Anonymous critics reclaim free speech protection

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  1. Libel and Privacy

    NMU         NEW JERSEY         Privacy         Jul 11, 2001    

Anonymous critics reclaim free speech protection

  • In so-called “cybersmear” cases, corporations must follow strict guidelines before requesting the identity of unknown, online commentors.

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

The Superior Court of New Jersey, Appellate Division in Trenton upheld an earlier ruling by a trial judge that prevented the disclosure of the identity of Yahoo! message board posters to Dendrite International.

“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 that “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 free speech advocates as a victory, one that lay down guidelines that companies seeking to unmask critics will find difficult to overcome.

The case was one of many in the last several years to involve 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 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 about the company.

Last December, a state court first required Dendrite to post a notice on the message board where the objectionable material was first published, the sort of civil procedure measure that speech advocates claim is required before an anonymous speaker is unmasked.

At a hearing to determine whether Dendrite could compel the Web service to reveal the users’ identities, Judge Kenneth C. MacKenzie made the preliminary ruling 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 had any effect on the stock price, and as a result, Dendrite did not suffer any harm. Without a financial injury, the company had no recourse, the court said.

“Despite the fact that Plaintiff is entitled to every reasonable inference of fact in this analysis of whether a case against John Doe No. 3 could survive dismissal,” MacKenzie wrote, “the Court will not take the leap to linking messages posted on an Internet message board regarding individual opinions, albeit incorrect opinions, to a decrease in stock prices without something more concrete.”

The appellate court also issued guidelines to help trial courts determine whether it should permit anonymous speakers to be unmasked. The appellate court 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.

“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,” Fall wrote in the appellate court opinion.

Before a court should unmask an anonymous speaker, it should also examine whether 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.”

(Dendrite v. John Does; Media Counsel: Eugene G. Reynolds, Waks, Mullen & Kartzman, Morris Plains, N.J.) DB

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