Important new Internet anonymity case

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Paul Levy" <plevy () citizen org>
Date: March 9, 2010 5:55:57 PM EST
To: <dave () farber net>
Subject: Important new Internet anonymity case

The New Jersey Superior Court Appellate Division, whose decision in Dendrite v. Doe remains the gold standard for state 
court appellate decisions addressing the procedures and standards to be used to decide whether to require the 
identification of anonymous Internet speakers so that a plaintiff can serve process on them to pursue a claim that the 
speech was actionable, has issued another important decision in this area of the law.  
 
In A.Z. v Doe, a high school student named Alexandra Zubowski and her mother, Barbara Zubowski, sued a whistleblower 
who, claiming to be an outraged parent, sent an anonymous email to the faculty adviser of an honorary program that 
showed that students could be "cool" even if they had good grades and followed a code of exemplary conduct, including 
not drinking.  The emailer identified the student plaintiff as being among several members of the program who could be 
seen in photos, attached to the email, drinking and playing beer pong.  Doe moved to quash the subpoena, and the trial 
court quashed the subpoena on the ground that, although plaintiff had submitted evidence sufficient to make a prima 
facie case that the email was false, Doe's anonymity should prevail at the balancing stage of Dendrite v. Doe.  
Plaintiffs appealed, arguing that Dendrite applies only to messages placed on web sites and not to emails. 
 
The Superior Court, Appellate Division, affirmed on alternate grounds.  The court decided that the Doe's affidavit, 
signed anonymously, had authenticated the photos as having been posted to Facebook either by the plaintiff herself of 
by her sister, and hence plaintiffs could not make a prima facie case of falsity even though the lawsuit was predicated 
on the claim that plaintiff was not drinking.  Plaintiffs never provided any evidence contesting the authenticity of 
the photographs.   Those of us who represent Doe defendants in these cases have often discussed the possibility of 
submitting affidavits from our clients to establish facts that bear on the anonymity issue - and I have done this 
myself on rare occasion - but this is the first appellate decision that squarely rests on such an affidavit in denying 
discovery of the defendant's identity.  The case is also significant because, as in Mobilisa v Doe in Arizona and 
Solers v. Doe in the District of Columbia, the court applied the law governing anonymous speech to an email.    The 
decision on this point is a bit odd, in that the court decided that the failure to make out a prima facie case was 
sufficient to require the quashing the subpoena while regardless of whether Dendrite applies to emails.
 
The decision and many of the underlying briefs can be found on the Cyberslapp Coalition's web site at 
http://cyberslapp.org/cases/page.cfm?pageID=93.  Richard Ravin, a New Jersey lawyer who has handled many anonymity 
cases, and his associate Shifra Apter, are lead counsel for the Doe.  Their press release about the case can be found 
here:  http://www.ravin.com/articles/AZvDoeOpinion.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




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