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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