Internet Defamation Law Blog

New Jersey Court Finds that Identities of Sources Used for Donald Trump Biography are Protected by New York Shield Law

Fair Report Privilege: New York Shiled Law: A New Jersey Appellate Court recently held that the identities of information sources utilized by the author in composing a biography of Donald Trump were protected from discovery by the New York Shield Law. In Trump v. O’Brien, the defendant Timothy O’Brien was the author of a book which claimed that several individuals having personal knowledge of Mr. Trump’s finances had indicated that his net worth was somewhere in the neighborhood of $150 to $250 million, and that he was not a multibillionaire as he had previously claimed. In response, Mr. Trump sued the author for defamation.

In reaching its decision, the Court first considered choice-of-law principles. It determined that New York law would apply since the action had a significant relationship to the State. Specifically, the Court noted that the book had been published in New York, the author’s career was centered there and many of Mr. Trump’s business interests were located in the State. The New Jersey Court therefore decided this case applying New York law.

Under the New York Shield Law, N.Y. Civ. Rights §79-h, sources of confidential information are provided absolute protection where the information is deemed to be “news” for purposes of the statute. The law defines “news” as “written, oral, pictorial photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.” Applying this broad definition, the Court ultimately found that although the details of Mr. Trump’s life had some entertainment value, they were nevertheless matters of public interest and therefore constituted “news” under the law. Accordingly, the author’s sources were deemed to be protected from discovery.

The case therefore marks a notable expansion of the privilege generally aimed at, and for the benefit of news entities, to the authors of entertainment-related books. The New York law defines a professional journalist as “a person who is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public. . .” In Trump, the Court specifically states that it “regard[s] an author who obtains news in confidence for dissemination to the public through the medium of a published book as fitting within this definitional phrase.”

It will be interesting to see if, and how, this case, and its expansive definition of a “professional journalist,” may be utilized in looking to extend protections of the Shield Law to bloggers and Internet posters who may claim to be disseminating “news” to the public. In fact, there is proposed legislation pending in the New York legislation that seeks to address this very question. The pending legislation seeks to modify the New York Shield Law to include in the definition of a “professional journalist” those who perform such services for a “web log.” For purposes of this bill, a “web log” is defined as “a website or webpage that contains an online journal containing news, comments and offers hyperlinks provided by the professional journalist or newscaster.”

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Deceased Blogger’s Post Continues to Haunt Defamation Plaintiff

Communications Decency Act Immunity: Cherie Davis, an Illinois resident, recently filed suit against Google, Inc., in connection with Google’s operation of blogspot.com, its blog hosting service. The complaint raised some unique and interesting facts.

As set forth in the complaint, Ms. Davis indicated that a blogspot.com customer, Sean Healy, had posted a statement about her on his blog. That statement indicated that Ms. Davis had referred to members of the United States Speedskating Federation as fascists. Ms. Davis alleged that Mr. Healy’s blog publication was defamatory in that it (a) was false since she never made such a statement; and (b) impugned her reputation by implying that she is “someone who made false and inflammatory statements about others without substantiation.” Ms. Davis indicated that such an implication is also false and without merit.

On the surface, this would appear to be a run-of-the-mill Internet defamation case. The unique aspect is that Mr. Healy has passed away. Yet, his blog remains active and the allegedly defamatory statement remains public. Ms. Davis asserted that because Mr. Healy passed away without an estate to probate, she had no one to whom she could direct her request that the statement be removed. Accordingly, without a blog owner to turn to, she sued Google.

The lawsuit, filed April 9, 2009, seeks injunctive relief. In other words, Ms. Davis has requested that the Illinois Court enjoin Google from continuing to post Mr. Healy’s “defamatory” statement.

Google would generally be able to avail itself of the immunities afforded by the Communications Decency Act. However, it will be interesting to see if the Court decides this differently on the basis of public policy. If Ms. Davis truly had no other means of having defamatory content removed, then an argument could be made that Google should step in and remove the problematic content.

Further, Google’s argument, according to the complaint, that “it could not control the content of its customers’ blogs” must fail. First, its own terms and conditions contradict this. Though the company states that it need not edit or remove content, it nevertheless reserves the right to do so: “Google reserves the right at all times to remove or refuse to distribute any content on the Service, such as content which violates the terms of this Agreement.” Arguably, the terms and conditions do not prohibit the posting of defamatory content, and therefore Google may argue that the posting at issue does not violate the terms of the agreement. That being said, the fact that they can remove content if it does weakens any argument that they technically have no way of controlling the content.

Moreover, Google’s obligations under the Digital Millennium Copyright Act likewise belie this argument. Under the DMCA, an Internet service provider, such as Google, is entitled to limited immunity from copyright infringement of third party posters so long as certain protocols are adhered to. Google obviously tries to avail itself of these protections and appears to have undertaken efforts to comply with those protocols – the terms and conditions even link to DMCA-specific terms. Notably, the DMCA states that an ISP may lose its immunity if it continues to host content that infringes another’s copyright once the ISP obtains knowledge of the same. The end result of this is that ISPs often remove such content upon receiving notice of infringement by a bona fide copyright owner. In fact, Google’s own terms and conditions anticipate this: “our response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers.” Again, therefore, it goes without saying that Google must have the capability to control its bloggers’ content.

All that said, the Court nevertheless will be likely be reticent to impose a restriction on the Communications Decency Act. The trend we have been seeing is instead a willingness of the courts to increase the reach of the immunities afforded by the Act. Accordingly, we would anticipate that the Court would not reach such a decision unless it truly believes that (a) the plaintiff was defamed; (b) is being damaged by the continued posting of the statement; and (c) that she has no other recourse to have the content removed. In all likelihood, the Court will demand a showing that the Mr. Healy’s assets have not been transferred to any person or entity, whether by his own will or otherwise. Given that Mr. Healy is survived by his mother, according to the complaint, it seems unlikely that his rights in and to the blog were not inherited by someone.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

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Salzano v. North Jersey Media Group, Inc., et. al.: Defamation Arising Out of Court Filings

Fair Report Privilege: The New Jersey Appellate Division recently handed down an important decision relating to the republication of allegations that were originally set forth in a legal complaint. In Salzano v. North Jersey Media Group, Inc., et. al., A-6715-06T1, the plaintiff, Thomas John Salzano sued various newspapers and related individuals at those entities for defamation. The statements underlying the alleged defamation consisted of newspaper articles that outlined (and arguably elaborated upon) a complaint brought against Mr. Salzano by a bankruptcy trustee. The complaint alleged, among other things, that Mr. Salzano had “‘unlawfully diverted, converted and misappropriated’ [the entity that was in bankruptcy]’s funds ‘for his own personal benefit.’” These allegations were then reported in various newspaper articles published by the defendants.

The media defendants moved to dismiss the civil complaint on the basis that the fair report privilege should apply as a defense to defamation. The Appellate Division reversed the lower court decision and held that the privilege did not apply. Hence, the case should not be dismissed.

The fair report privilege is an established exception to republication liability under New Jersey defamation law. The general rule is that absent the application of a privilege, a person or entity is liable for republishing a defamatory statement. The Court in Salzano cited the New Jersey Supreme Court’s decision in Costello v. Ocean County Observer, 136 N.J. 594 (1994), where the fair report privilege was articulated and discussed at length. Citing Costello, the Court noted that “to republish a defamatory statement, the reporter or newspaper must verify that a statement was spoken, and also that the substance of the statement is true.” Accordingly, the Court held that the newspapers and related defendants erred in not verifying the facts of the complaint prior to republishing them in the articles.

The Court further held that the fact that the original statements were made in the context of a judicial proceeding was not enough to immunize the media entities. In so holding, the Court noted that although the fair report privilege applies to statements made in “judicial and other official proceedings,” it did not provide an exception to liability in this case. The Court noted that the fair report privilege does not apply to preliminary pleadings “‘such as a complaint or petition, before any judicial action has been taken.’” Accordingly, the Appellate Division held that the media defendants could not assert that the privilege extended to their republication merely because the statements were republished from a judicial filing. Specifically, the Court said that the fact that they were in a complaint made it clear that the privilege should not apply.

Another interesting determination by the Salzano Court was that the actual malice standard should apply to Mr. Salzano’s claims because he was, in essence, a public figure by association. This essentially means that it would not be enough to prove that the defendant was negligent in publishing the statements, but instead, the plaintiff would need to prove an intentional misstatement or willful disregard of the truth. The Court specifically noted that at the time of the articles’ publication, Mr. Salzano was not a public figure. Nevertheless, the Court noted that, as the chief managing officer of the bankrupt entity which was in a highly regulated industry, Mr. Salzano’s father was a public figure. The Court noted that the bankruptcy made the company’s business affairs a matter of public interest and concern. The Court then extended this to indicate that, through the allegations made against him, Mr. Salzano had himself become “enmeshed in a matter of public concern.” Therefore, the Court applied the more stringent, actual malice standard.

Comments/Questions: ljm@gdnlaw.com

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Court Defines Test for Filing Anonymous Lawsuit

Whereas many Internet defamation cases involve anonymous defendants, there are many situations in which a plaintiff wants to remain anonymous. For example, a victim of defamatory comments of a sexual nature may wish to remain anonymous to avoid public humiliation.

In general, a plaintiff must place his name on a pleading in order to sue in federal court because courts have held that the public has a right to know in such instances. However, a court may allow a litigant to bring suit anonymously under certain, limited circumstances. In determining whether to make this allowance, the court will conduct a balancing test, weighing the plaintiff’s need for anonymity against the interests of public disclosure.

In a recent case before the United States Court of Appeals for the Second Circuit, the Court reversed a lower court's decision which dismissed a plaintiff’s claim merely because she had filed the suit without using her name. Sealed Plaintiff v. Sealed Defendant #1, 06-1590-cv (2nd Cir. 2008). In that case, a female plaintiff who claimed to have been the victim of a sexual assault sought to file a lawsuit against the alleged perpetrator without disclosing her name. In support of its decision, the Court cited the Ninth Circuit case Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000), which outlined a standard for determining whether a litigant may file suit anonymously. There, the Court found that a plaintiff may only sue anonymously if his need for anonymity outweighs both the prejudice to the opposing party and the public’s interest in knowing the plaintiff’s identity.

Applying that same standard, the Second Circuit Court in Sealed Plaintiff outlined a series of factors to be considered in conducting the balancing test, which are: (a) whether the litigation involves matters that are highly personal or sensitive, or a plaintiff that is particularly vulnerable; (b) whether there is a risk of retaliation against the party filing suit or any innocent non-parties; (c) whether the identification presents other harms and the severity of those harms; (d) whether plaintiff is particularly vulnerable to possible harms of disclosure; (e) whether the suit is challenging actions of government or that of private parties; (f) whether defendant is prejudiced by allowing plaintiff to press claims anonymously; (g) whether plaintiff’s identity has thus far been kept confidential; (h) whether public’s interest in litigation is furthered by requiring plaintiff to disclose his identity; (i) whether because of the purely legal nature of issues presented or otherwise there is atypically weak public interest in knowing the litigants identities; and (j) whether there are any alternative mechanisms for protecting confidentiality of plaintiff. Ultimately, the Court determined that given the nature of the claim, the plaintiff's interest in keeping her name anonymous was more important than the public interest in knowing her identity.

In light of this decision, potential plaintiffs should note that a court may allow them to file suit anonymously in certain instances. However, they should also be wary that courts are likely to allow them to do so only under narrow circumstances, such as where the facts or allegations surrounding a claim are of a particularly sensitive or personal nature.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

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Serving Defendants in Anonymous Internet Defamation Lawsuits

As the Internet continues to change the way we communicate, courts have struggled to determine the appropriate application of due process to those accused of defaming others online. Clearly, defamation claims involving comments made by an anonymous Internet poster are unique. Often the speaker is anonymous or his contact information is otherwise unavailable. Furthermore, because of the speed and widespread use of the Internet, the author may often reside in a different state or country than the reader or then the defamation victim. For these reasons, serving a summons and complaint, necessary to commence the lawsuit on such an individual can be especially challenging.

For instance, when a defendant is sued via a “John Doe” complaint, the plaintiff will generally have to demonstrate the efforts that he undertook to serve the defendant. For example, the plaintiff could show that he gave notice of the lawsuit by posting a message on the same website where the allegedly defamatory statements were made by the defendant. While this is usually not sufficient service in and of itself, this technique can be added to other forms of notice in a manner that some Courts might determine was sufficient service.

Typically, where an allegedly defamatory comment is made online, the only identifier that can be used to link the defamer to the comment is his email and I.P. address. In such a scenario, a plaintiff may try to serve the legal documents via email. However, where comments are made in online forums and message boards, the email address of the speaker may also be unknown. In such instances, a litigant will often sue the unknown individual using a “John Doe” complaint, or a complaint which names the defendant under the fictitious name “John Doe.”

If the plaintiff can demonstrate that he undertook sufficient efforts to serve the defendant, courts will usually permit him to bring an inquest to find out the identity of the anonymous poster. Once the defendant’s identity is discovered, the plaintiff may be required to amend the complaint to reflect the actual name of the party. He may also have to notify that party of the impending lawsuit. Some plaintiffs have gotten creative lately. For example, one plaintiff posted a message on an internet message board. That message contained a copy of the summons and notice asking the defendants to contact the attorney for the plaintiff in order to deliver a copy of the summons and complaint.

As the Internet grows and scope and complexity, both Courts and Legislatures will need to address in more detail the important issue of service of process on line.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

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Federal District Court Mandates the Disclosure of the Identify of Online Posters in Yale Law Student Case

Internet Law: Federal Case Law: Anonymous Speech: Two female Yale law students recently brought suit in the United States District Court in Connecticut, in Doe I and Doe II v. Individuals, whose true names are unknown, 2008 WL 2428206 (D. Conn. 2008). Through the lawsuit the students alleged that they had been defamed, threatened and harassed on the Autoadmit.com website. The problematic statements were posted on the website forum utilizing monikers, and therefore the identity of the speakers was unknown. The plaintiffs issued a subpoena duces tecum to AT&T as the Internet Service Provider for the website in order to identify the individuals utilizing those monikers.

In evaluating the motion to quash the subpoenas, the District Court noted that the “First Amendment generally protects anonymous speech,” and that such protections extend to Internet speech. The Court acknowledged that many other courts have quashed subpoenas seeking the identifying subscriber information based on First Amendment concerns and protection of anonymous speech. However, the Court specifically noted that the First Amendment right to anonymous Internet speech “is not absolute and must be weighed against [Plaintiff’s] need for discovery to redress alleged wrongs.

The Court outlined several factors to be examined in making this determination: (1) whether the plaintiff undertook efforts to notify the anonymous posters that they are the subject of the subpoena; (2) whether the exact “problematic” statements would constitute actionable speech; (3) the specificity of the discovery request and “whether there is an alternative means of obtaining the information called for in the subpoena;” (4) whether there is a “central need for the subpoenaed information to advance the plaintiffs’ claims;” (5) whether the subpoenaed party had an expectation of privacy when the online material was posted; and (6) whether the plaintiffs have made an “adequate showing” as to their claims. Notably, the Court held that the notice requirement had been met because notice of the subpoena was placed on the Autoadmit.com website itself. Moreover, the Court outright rejected other courts’ interpretations as to what constitutes an “adequate showing.” Instead, the Court adopted the threshold requirement that the plaintiffs “make a concrete showing as to each element of a prima facie case against the defendant.” Specifically, the Court noted that “[u]nder such a standard, ‘[w]hen there is a factual and legal basis for believing [actionable speech] has occurred, the writer’s message will not be protected by the First Amendment.”

Examining the statements at issue, the Court determined that the plaintiff had made such a showing and that her interests in pursing discovery outweighed the defendant’s First Amendment right to anonymous speech. Finally, the Court also denied the defendant’s request to proceed in the litigation as an anonymous party. In so ruling, the Court noted that the defendant had not made a “showing of any substantial privacy right or of any potential physical or mental harm as a result of being a named party in the litigation.”

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© 2008 Nissenbaum Law Group, LLC

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The Digital Millennium Copyright Act: A valuable tool or a dangerous weapon?

It is critical that website operators fully understand their rights and responsibilities under the Digital Millennium Copyright Act (“DMCA”). This is particularly important for operators of social networking sites, blogs or other sites that allow third parties to publish content on the site. As more and more “traditional” websites now allow such postings -- one of the many aspects of the Web 2.0 age -- the importance of the DMCA grows.

The DMCA is a Federal statute that was enacted in the 1990’s which essentially modified copyright law in order to account for new technology, including the Internet. One aspect of the statute specifically provides for a limited immunity for websites posting content that might arguably infringe another’s copyright rights. Essentially, the law outlines certain protocols for webmasters to utilize, which includes providing an adequate way for those whose work has been infringed upon to contact the website and request the removal of the content. The DMCA generally says that if the website has engaged such protocols, and takes down content that is properly reported to it, it can have immunity from a copyright infringement claim. For this reason, it is critical that all websites who host third party content ensure that they are properly engaging in the protocols provided by the DMCA and include the appropriate instructions in their posted terms and conditions.

A little-known aspect of the DMCA applies to those reporting infringements. While the DMCA protocols allow a person whose rights have been infringed to request that the website remove the protected content, the statute also provides a penalty for a person who wrongfully utilizes this protection. The law provides for liability against the wrongful reporter, including payment of attorney’s fees, which may be payable to (a) the alleged infringer; (b) the website that removed the content; and/or (c) the copyright owner or licensee of the copyright owner. Essentially, the damages might be paid by anyone in one of those three categories who is injured as a result of the false report. Specifically, the DMCA states that: “[a]ny person who knowingly misrepresents under this section – (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or identification, . . .” is liable under the Act. 17 U.S.C. 512(f). In sum, there are two ways of being liable under this provision: (a) for indicating that a work is infringing if it is not or (b) for indicating that a work which was removed was in fact, not infringing and should have remained posted.

This penalty-based aspect of the statute was recently highlighted in a case currently pending in Illinois relating to the YouTube.com posting of rodeo competitions. In that case, Showing Animals Respect & Kindness v. Prof’l Rodeo Cowboys Association, an animal rights group posted video from a rodeo event on YouTube. The Rodeo Association then contacted YouTube and requested that the videos be removed because they infringed upon the Association’s copyright. SHARK, the animal rights group, filed suit indicating that the Association’s request violated the DMCA because it was based on a false claim. Its argument was that the Association knew that there was no copyright in the rodeo event, and therefore the request that the videos be taken down was not a rightful request to prevent infringement, but rather constituted a wrongful means of trying to remove content that was unfavorable to them. The case is ongoing.

Clearly, those reporting infringements should take caution in doing so. The Rodeo case highlights the importance of being reasonably certain that one has a viable claim for copyright infringement before making a request that a posting be removed under the DMCA.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

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States Adopt Different Requirements for Jurisdiction over Internet Defamation Cases

The flux in jurisdictional laws of the various states in relation to Internet defamation presents some difficult First Amendment challenges. If a speaker makes a statement online, it is arguably published throughout the world. If that speaker cannot reasonably predict which of the many potential sets of laws circumscribing free speech may apply to him, the effect of that uncertainty may chill his speech. In other words, there is an ongoing concern that the very uncertainty about what is and is not prohibited from state to state may create a situation in which speakers will simply elect not to express their viewpoints online. Surely, this is contrary to the spirit of the First Amendment.

The most obvious laws that circumscribe free speech relate to the prohibition against defamation: an untrue statement about another that is communicated to a third party causing harm. States continue to develop different standards for determining whether their courts have jurisdiction over defamatory statements made by out-of-state authors who write over the Internet. New Jersey and New York offer very good examples of how different such jurisdictional standards can be.

New Jersey courts generally take a more lenient approach when determining whether jurisdiction exists in defamation cases. Essentially, a New Jersey court will look to see whether a message over the Internet specifically targets residents of New Jersey. In one recent New Jersey case, the Court held that it did in fact have jurisdiction. In that case, defamatory statements were made on the Internet regarding a female pilot who resided in New Jersey. The Court reasoned that since the person who made the comments knew that the target of the speech lived in New Jersey, he could reasonably have expected that New Jersey courts would have jurisdiction over the matter.

Courts in some other states, however, have declined to find jurisdiction based upon the impact of the online defamatory statements. Most notably, courts in many states have declined to find jurisdiction over comments made on websites based on a determination that the sites were passive websites not targeted to that particular state.

A good example is New York. New York courts have refused to find jurisdiction over defamatory comments made over the Internet, even if a person in New York suffered harm as a result of the comments. In fact, New York courts require defamation plaintiffs to overcome a higher burden when proving jurisdiction. In many cases, litigants have attempted to get around New York’s harsh rules by trying to claim that the defendant was transacting business within the state. However, New York courts will look very carefully at how much business is actually being transacted. Often, cases will be dismissed because the defamer has very few contacts with New York.

In conclusion, jurisdictional requirements for defamation claims vary from state to state. It is imperative that an individual who wishes to pursue a defamation claim against an out-of-state resident be careful to bring that action in the correct jurisdiction. If done improperly, the case may either be dismissed, or the plaintiff runs the risk that he will run out of time to bring a defamation action in the proper jurisdiction before the applicable statute of limitations for defamation has passed.

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© 2008 Nissenbaum Law Group, LLC

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New Jersey Court Requires a Litigant to Prove Damages in Defamation Case

New Jersey Caselaw: In Suarez v. NJ.com, an unpublished opinion, the New Jersey Appellate Division recently found that a defamation plaintiff must prove damages even when he already proved that the comments were made with actual malice. The Court noted that there are times when a litigant does not need to prove damages in a defamation case but this case did not fall within that exception.

In the Suarez case, a statement alleged that the Ridgefield, New Jersey Mayor, a councilman and several police officers went to the author’s home at six o’clock in the morning, investigating an erroneous anonymous tip that he had an illegal apartment. The posting of this statement spurred numerous additional bloggers, many of whom expressed sympathetic comments. The Mayor of the town sued the anonymous writer for defamation, denying that he was ever involved in any such home inspection and alleging that his reputation had been harmed as a result of the statement. The writer admitted under oath that the statement was not true, confessing that the incident did not occur at his home but that it was merely a story he heard from his attorney and friend who was the prosecutor in the town.

Even though the writer made false statements, the Court did not permit the Mayor to proceed with his defamation case. As a public figure, the Mayor had a greater burden of proof. Essentially, he needed to prove that (a) the writer acted with actual malice in making the statements against the Mayor; and (b) he suffered actual damages as a result of the publication of those statements.

The law provides for added flexibility with regard to speech made about public officials. The First Amendment encourages speech by public officials and therefore requires actual malice by the speaker in order for a public figure to proceed with a defamation claim. Actual malice generally means making a statement with actual knowledge of its falsity or with reckless disregard of whether it was false. Thus, since the statements in this case were “of public concern,” the Court examined those statements more closely.

Nonetheless, the court noted that even if the court found that defendant acted with actual malice in making the statements, the plaintiff would still be required to prove that his reputation was actually damaged as a result. In the end, the court rejected the Mayor’s claims because he failed to provide sufficient information or other evidence as to how his reputation was actually damaged.

This case highlights the difficulty for a public official to win a defamation case with added scrutiny and additional elements that a public official must prove. Any person who believes that a defamatory statement has been made about them should seek the advice of counsel in order to determine whether the claim will be subject to such heightened scrutiny.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

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New York Court Rejects Disclosure of Anonymous Blog Poster

New York Caselaw: The New York County Supreme Court in Greenbaum v. Google, Inc., held that an elected member of a school board was not entitled to discover the identity of an anonymous blog poster who posted derogatory comments about the board member, calling her a “bigot” and an “anti-semite.” However, the Court did not focus upon the legal issue of whether it was appropriate to order disclosure of the anonymous speaker’s information; instead, it noted that since it did not believe that the comments rose to the level of defamation, there was no need to reach the issue of whether disclosure of the poster’s identity should be revealed.

It first commented that an appellate court in New York had not yet developed a standard that would govern the disclosure of the names of anonymous bloggers. The Court indicated that an anonymous Internet speaker must be given an opportunity to be heard in court and that those parties bringing a lawsuit must identify the actual statements that they believed to be defamatory. Notably, when a court gives an anonymous poster the opportunity to be heard, it will generally take steps to ensure that the speaker’s identity remains anonymous until it renders a decision as to whether the disclosure of the identity of that poster is lawful. Otherwise, an anonymous poster might be afraid to post speech that is protected by the First Amendment for fear that a court would give any litigant his name. Courts generally strive to not chill speech in this manner.

After examining the speech at issue, the Greenbaum Court found that it did not need to further articulate a standard for disclosing the identity of an anonymous internet poster because the posted comments were not defamatory. As such, the case could be dismissed without the speaker’s identity being revealed.

This case emphasizes the need to have a legitimate defamation claim prior to filing an action alleging defamation. Obtaining a speaker’s identity can be difficult and time-consuming. The courts will not generally readily demand the disclosure of speakers’ information. Accordingly, it emphasizes the importance of reviewing the speech at issue to be sure that it is such that it is likely to result in a viable claim.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

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