Standards to Identify Anonymous Posters for Defamation

The internet is creating emerging legal issues, from jurisdiction to discovery. The identification of anonymous bloggers-posting defamatory statements on the internet–is one of those issues.  

Judge Rory J. Bellantoni, Ottinger v. Non-Party The Journal News

In Ottinger v. Non-Party The Journal News, 2008 N.Y. Misc. LEXIS 4579 (N.Y. Sup. Ct. 2008), the Plaintiff sued Doe Defendants for anonymous posts on a newspaper website.  The anonymous postings on the newspaper blog claimed that the Plaintiffs bribed local government officials, had fraudulent deeds and other less than flattering statements.

guy-with-keyboardThe Plaintiff brought a third party subpoena against the newspaper to identify the anonymous posters.  While the posters could not be identified by viewing the newspaper blog, the individuals who made the postings had to create screen names in order to make any comments on the newspaper blog. 

The newspaper challenged third party subpoena to identify specific users who left the defaming messages.

 The Court outlined the following test to identify the anonymous posters:

 1. Plaintiff had to undertake efforts to notify the anonymous posters that they were the subject of a subpoena and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve their opposition. 

 2. Plaintiff had to identify and set forth the exact statements purportedly made by each anonymous poster than plaintiff alleges constitutes actionable speech;

 3. Court needed to review the complaint and all information to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named defendants and sufficient evidence to support each claim; and

 4. The court had to 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 properly to proceed.  See, Ottinger, 5.

 Points 1 and 2 were accomplished by posting the on the newspaper blog the statements at issue and the screen name that posted the statement.  The Plaintiffs had to specifically post for Point 1 (a) the existence of the special court proceeding to identify the anonymous posters, (b) the relief Plaintiffs’ sought, and (c) the fact that any individual who believed that their rights might be affected could seek to intervene anonymously in the special proceeding.  Ottinger, 5-6, citing Dendrite International v. Doe 342 N.J. Super. 134, 775 A.2d 756 (2001).

 The Court found the Plaintiff met the remaining requirements, stating that the complaint established Plaintiffs had set forth a prima facie cause of action. The Plaintiffs also produced sufficient evidence supporting each element of its cause of action, except that of constitutional malice. Ottinger, 6.  The court found the constitutional malice element would be difficult to prove without knowing who made the defamatory postings, thus the Plaintiffs did not need to meet the constitutional malice requirements for the early disclosure. 

 In this case, the newspaper had to produce any information it had on the identities of anonymous posters.  One does not need to spend much time surfing on news articles or social networking sites to see questionable insults between posters on news articles.  While people expressing themselves is protected by the First Amendment, online actions that rise to the level defamation will likely be more common with lawyers and judges facing these issues on a regular basis.


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