By Marc A. Lavaia
In the modern age of electronic Internet "blogs" and "forums" anyone with a basic home computer and an Internet connection can anonymously post defamatory statements for thousands of eyes to read. With this new freedom of information, defamation cases based on anonymous electronic statements are becoming more and more prevalent. Without any legislation addressing this issue, New York Courts are being called upon to develop procedures whereby a plaintiff can use the law to discover the identity of an electronic defamer.
To bring a defamation case against an anonymous defamer, the plaintiff almost always needs to compel the host Internet Service Provider ("ISP") to disclose that defamer's identity through the issuance of a subpoena. For example, if an individual logs onto a blog hosted by Yahoo!, and that individual makes a defamatory statement anonymously, the only way to actually get that individual's information is to subpoena Yahoo!. Generally, New York Courts have held that a plaintiff is entitled to "all registrant information collected by the ISP, including without limitation any electronic mail addresses that such ISP may possess concerning the anonymous defamer." [1] However, before a court will grant discovery of such information, a plaintiff must show that he or she is entitled to such defamer's identity, since the request implicates the defamer's rights under the First Amendment to the United States Constitution.
Although the First Amendment does protect anonymous speech, such protection is not absolute. In New York, Courts perform a balancing test between a plaintiff's right to protect his or her reputation as a result of the alleged defamatory statement, a plaintiffs right to damages, both balanced against the alleged defamer's First Amendment right to speak anonymously. Courts analyze the following four (4) factors when deciding whether to order an ISP to disclose the identity of an alleged defamer:
•(1) Did the plaintiff take efforts to notify the anonymous defamer that he or she is the subject of a subpoena or application for disclosure, along with providing the alleged defamer adequate time to file and serve opposition to plaintiff's request; and
•(2) Did the plaintiff set forth the exact statements made by the alleged defamer that the plaintiff considers defamatory; and
•(3) Did the plaintiff, in its complaint or application to the Court, produce sufficient evidence to support each element supporting a cause of action in defamation on a prima facie basis; and
•(4) The Court must finally balance the alleged defamer's First Amendment right to anonymous speech with the plaintiff's prima facie case, as presented, in an effort to determine the necessity of the disclosure of the alleged defamer's identity. [2]
It is important to note that even if a plaintiff succeeds in convincing a Court to issue an order compelling an ISP to disclose the information requested concerning an alleged defamer, it may be of no accord. Many ISP's may not possess the identity of their users and further, any information provided by a user may not be current and many times is even completely inaccurate, providing no help in discovering an alleged defamer's identity.
In short, an individual making anonymous defamatory statements on the Internet is not immune from legal action and his or her identity is not completely protected. However, a plaintiff who has been the victim of an anonymous defamatory statement on the Internet will have a substantial burden in nailing down the identity of the maker of those statements thus making the practical enforcement of his or her claim an uphill battle.
[1] In the matter of Berk, index no. 107316/08 (N.Y.Co. Sup,et. June 30, 2008).
[2] Matter of Ottinger v. Non-Party The Journal News, Index No. 08-03892 (Westchester Co. Sup. Ct, July 7, 2008) citing Dendrite International Inc. v. Doe, 775 A.2d 756 008 citing 775 A.2d 756 (N.J. Super. Ct.2001).
