Anonymous speech online: When must the identity of a masked commenter be revealed?

Type: 

ESSAY

Anonymous speech is prevalent on the Internet, of course, but courts nonetheless are often asked to force a web site to reveal the identities of anonymous speakers. Courts are often willing to order the unmasking when there is clearly a valid cause for a libel claim against the speaker. Because many of the demands issued are attempts to silence critics or whistleblowers, courts have started to settle on a standard that tries to tell the two types of claims apart: If the one demanding the unmasking can show he's got a credible libel claim, and the anonymous speaker is given an opportunity to defend himself, courts will allow the unmasking.
The emerging test setting forth guidelines for courts faced with requests to compel web sites to reveal identities of anonymous Internet speakers includes five factors:

• the demanding party must make efforts to notify the anonymous commenter and allow a reasonable time for him or her to respond;
  
• the demanding party must identify the exact statements made by the commenter;
  
• the demand must set forth a prima facie cause of action, meaning it must present enough evidence for the demanding party, the prospective plaintiff in the libel claim, to win the case barring any defenses or additional evidence presented by the commenter;
  
• the demanding party must bring forth sufficient evidence for each element of its defamation claim; and
  
• the court must balance the speaker's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous commenter's identity.
  

The emerging standard was developed in a 2001 New Jersey appellate case, Dendrite International Inc. v. Doe No. 3, and condensed in 2005 by the Delaware Supreme Court in Doe v. Cahill, which is favorable to anonymous commenters. The approach requires in part that a prospective plaintiff must produce sufficient evidence to establish the legal elements of defamation before they can uncover the identities of anonymous commenters. This threshold, as the Delaware high court noted in Cahill, discourages a “sue-first, ask-questions-later” strategy that would allow a plaintiff to unmask commenters by alleging specific defamation claims without evidence to back them up.
The standard was more recently upheld in Maryland, where a developer sued three John Doe defendants who in 2006 posted anonymous comments on a Web site. The developer alleged that the statements, which described a Dunkin’ Donuts shop he owned as one “of the most dirty and unsanitary-looking food-service places I have seen,” were defamatory, and he subpoenaed the news site for the identities of the anonymous commenters.
The Maryland high court held that the identities of the John Doe bloggers were protected; in so doing, it adopted the five-part Dendrite test.
The Dendrite test recognizes the First Amendment protection afforded to anonymous speech by requiring plaintiffs who sue anonymous bloggers to overcome certain hurdles before a court will unveil their identities. Generally, a plaintiff must show in his initial complaint that he has a valid claim for defamation. If he can’t set forth every element of his lawsuit and the facts tending to prove those elements, a court will not order the release of the defendant’s identity.
Because Brodie had failed to set forth a valid defamation claim against the John Doe defendants, the appellate court ruled that they could remain anonymous.
Additionally, the court specified that the proper test requires a plaintiff to notify the anonymous bloggers when a subpoena is sent to their Internet Service Provider, and give the blogger an appropriate time to respond. Finally, the test balances the anonymous bloggers’ First Amendment-based right of free speech against the strength of the defamation case presented by the plaintiff.
Justice Lynne Battaglia wrote in the opinion: “On the one hand, posters have a First Amendment right to retain their anonymity and not to be subject to frivolous suits for defamation brought solely to unmask their identity. . . . On the other, viable causes of actions for defamation should not be barred in the Internet context.”