Skip to comments.

Posted on 12/10/2001 1:32:33 PM PST by Torie

Companies are increasingly using the courts to seek relief for injuries caused by “cybersmearing,” a form of defamation appearing on the Internet message board and in chat rooms. However, because such defamatory statements usually are posted anonymously, before companies can pursue their defamation (and related) claims, they first must request the court to compel the relevant Internet service provider (“ISP”) to reveal the actual identity of the anonymous poster. In determining whether to compel the discovery of an anonymous Internet poster’s true identity, courts are required to balance the privacy and free speech interests of the poster with the plaintiff company’s right to protect its proprietary interests and reputation.

A New Jersey appellate court recently set forth a comprehensive set of guidelines for a trial court to use when confronted with an application by a plaintiff to compel the identity of an anonymous Internet poster. Before compelling an ISP to reveal such an identity, the trial court should:

[1] require the plaintiff to notify the anonymous poster that he or she is the subject of a subpoena, and provide a reasonable opportunity for the poster to respond (efforts to notify the poster may include posting a message on the ISP’s message board):

[2] require the plaintiff to provide an exact description of the statements made by the poster;

[3] determine whether the plaintiff has set forth a prima facie cause of action against the poster; and

[4] balance the right of anonymous free speech with the strength of the plaintiff’s cause of action and the necessity of the disclosure of the poster’s identity.

While these factors currently are the law only in New Jersey, other courts have considered, and in the future are likely to consider, similar factors before permitting discovery of an anonymous Internet poster’s identity.

In addition to these common law requirements, a court recently held that California plaintiffs also face the further hurdle of satisfying a California statute designed to protect freedom of expression - the so-called anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute. Triggered by the filing of a special motion by the defendant, the anti-SLAPP statute requires the plaintiff to demonstrate to the court a probability of success on any cause of action arising from any act the defendant committed in furtherance of his or her right of free speech in connection with a public issue, or face dismissal before discovery even begins.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.