A decision by Westchester County Court Judge Rory J. Bellantoni has quietly established New York’s first test for compelling the disclosure of online anonymous commenters who defame others in their post. It didn’t help that the couple defamed, in this case, included Richard Ottinger, former congressman and dean of Pace University Law School.
While not precedent, this is important as it’s the way rules get started, and then become “the rule” adopted by courts struggling to find some way to address difficult situations in the future.
In this law.com article, courtesy of Bashman, Noeleen Walker writes:
The allegedly defamatory posts, which appeared on the “LoHud” site maintained by the Journal News, centered around an effort by Ottinger and his wife, June, to renovate their Mamaroneck home.
In September 2007, a post under the name “SAVE10543” accused the couple of presenting a fraudulent deed “in order to claim they own land under water,” and “lying to the State” and other officials to secure permits for their home’s construction. Subsequently, a post under the name “hadenough” maintained that the Ottingers were part of an “illegal scam.” A third post by “aoxomoxoa” later chimed in that the mayor of Mamaroneck “took the juice from Richard and June Ottinger to the tune of $25,000 so they could build their starter Taj Mahal on a substandard lot.”
The Ottingers did not think this funny, and decided to do something about it. But to whom?
The action, begun as a “John Doe” defamation action and then converted to an action for pre-trial discovery, sought the identities of the anonymous poster(s). The judge first ordered a notice to be placed on the website to notify the poster(s) that they could intervene anonymously. When no one came forward, he addressed the merits of disclosure.
Judge Bellantoni then turned to the four-step test set forth by the Superior Court of New Jersey, Appellate Division, in Dendrite International v. Doe, 775 A.2d 756 (2001), to guide his inquiry.
In Dendrite, the court held that a plaintiff who wants an Internet service provider to disclose the identity of anonymous posters must first “undertake efforts” to inform the writers that “they are the subject of a subpoena or application for an order of disclosure.”
A plaintiff must also identify the “exact” alleged defamatory statements and “produce sufficient evidence supporting each element of its cause of action, on a prima facie basis.”
Finally, a court “must balance the defendant’s First Amendment right of anonymous free speech against the strength” of the plaintiff’s case.
Whether the information contained on the Journal News “LoHud” website will be sufficient to identify the poster is another matter. For those who don’t know, even anonymous posters leave behind a footprint including their IP address, if not more. But this information isn’t always enough to identify who wrote the offending words.
The quadripartite test is interesting in that the plaintiffs are required to make a prima facie showing that the comments are defamatory, which should be sufficient in itself to remove the cloak of First Amendment Protection. While it may be easy to prove the allegations are false, it’s hard to imagine how they can prove them to be malicious when one doesn’t know who published the words. Falsehood alone does not make speech defamatory.
While balancing tests tend to go over well with most people, it is a purely subjective measure and provides no rule or guidance for its application by a court. This leaves the judge to superimpose her own sensibilities over the relative weight of the competing interests. Sometimes, there is no better option. But if New York is going to develop a test for the future, I would hope that we can do so by removing a purely subjective prong and provide greater clarity for all involved.
Since the third prong of the test requires a prima facie showing, it would seem that overcoming that hurdle would be sufficient. Once the showing is made, it really shouldn’t be left to a judge to determine that a viable cause of action is sufficiently weighty at the opening stage of litigation.
From the standpoint of a potential target of such an action, and a blawger who is less than enamored with anonymous posters, my strong pro-free-speech sensibilities give way to disclosure when someone is defamed. Anon posters are emboldened to post some truly bad stuff about others, hiding behind their nifty screen names to deliberately hurt their “enemies” with lies. There’s nothing about doing this that makes me feel compelled to protect them.
Note that this is about people who deliberately publish lies about others, not about those who publish an uncomfortable truth. We have the right, indeed the duty, to disclose impropriety that public officials would prefer remain unknown. But the depth of political extremism and hatred these days tends to drive some people to go to any length to hurt their political enemies. When they cross the line from truth to lies, they lose my sympathy and they do grave harm to political discourse.
And, of course, the ability to publish anonymously at will on a website is an invitation to problems. If online content is to have meaning, there must be a way to stop liars from having their way.
Update: On August 27, 2009, Justice Richard Liebowitz dismissed the Ottingers’ cause of action for defamation as a SLAPP suit again named defendant Stuart Teikert (note the comment below). Justice Liebowitz refused to award damages, both actual and punitive, to Teikert despite the holding, and further refused, in the exercise of discretion, to award attorneys fees and costs. It sounds like a “pox on both their houses” decision.
One point requires additional commentary: This is why a prima facie showing, rather than a summary judgment showing, is inadequate to protect first amendment rights when outing an anonymous poster. The Ottingers got their name, but couldn’t make their case? That it was held to be a SLAPP suit, without any defamation, should make the point as clearly as possible. Prima facie is an insufficient test to compel disclosure of an anonymous speaker.