IP: Protecting anonymous speech on-line

[David Farber <dave () farber net>]

PS Paul just joined IP

> X-Mailer: Novell GroupWise 5.5.2
> Date: Thu, 12 Jul 2001 12:38:35 -0400
> From: "Paul Levy" <PLEVY () citizen org>
> To: <farber () dsl cis upenn edu>
>
>
> I just heard about your email list from William Friedman; thought maybe 
> you would be interested in this.
>
> 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 is posted on our web site 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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