FC: New Jersey appeals court protects right to be anonymous online

From: Declan McCullagh (declanat_private)
Date: Wed Jul 11 2001 - 08:19:00 PDT

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    Politech archive on anonymity:
    http://www.politechbot.com/cgi-bin/politech.cgi?name=anonymity
    
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    Date: Wed, 11 Jul 2001 10:26:56 -0400
    From: "Paul Levy" <PLEVYat_private>
    To: <declanat_private>
    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
    (202) 588-1000
    http://www.citizen.org/litigation/litigation.html
    
    
    
    
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