THE LIMITS OF ONLINE ANONYMITY: WHEN CAN AN ONLINE PSEUDONYM BE PIERCED?
by Elliott Joffe
In two recent decisions, New Jersey’s appellate courts have established guidelines for cases where a plaintiff upset by statements or information transmitted anonymously via the internet (such as message board postings) can discover the identity of the culprit. These decisions, Dendrite International, Inc. v. John Doe No. 3 and Immunomedics, Inc. v. Jean Doe, a/k/a “moonshine_fr” were decided July 11, 2001. In both cases, the court adopted the following guidelines:
First, the plaintiff must attempt to notify the anonymous poster that he or she is the subject of a subpoena or other action. This occurs after suit is filed and the subpoena is issued or an application to the court is made. Proper forms of notification include posting an announcement on the same message board on which the offending message appeared.
Next, the plaintiff must advise the court of the exact statements made by the anonymous individual. From this information and any additional proofs submitted by the plaintiff, the court will make its decision.
The court’s decision will weigh the claim that the plaintiff’s rights have been violated against the First Amendment rights of the anonymous party. How the court will weigh these opposing interests and what the result will be will depend heavily upon the unique facts of each individual case. An examination of Dendrite and Immunomedics can provide some insight into how courts may resolve these cases in the future.
In Dendrite, various anonymous defendants had made allegedly defamatory statements about Dendrite’s business practices, largely revolving around an alleged change in Dendrite’s accounting practices, which the posters claimed inflated Dendrite’s profits on its books. Dendrite’s efforts to obtain the identities of the posters from Yahoo!, on whose message board the statements were posted, failed for two reasons. First, Dendrite failed to prove that the statements were false. Second, Dendrite failed to prove it had been harmed. Given these failures, it is easy to see why the court refused to infringe upon the posters’ First Amendment rights.
In Immunomedics, the anonymous defendant, identifying herself as an employee of Immunomedics, disclosed inside information about the company’s business. Immunomedics proved that all of its employees signed confidentiality agreements. Since the anonymous poster had admitted her status as an employee, the wrong and harm had both been proven. The employee’s First Amendment right to anonymity could not survive her own breach of contract, and Immunomedics was entitled to learn her identity.
New Jersey’s appellate court has used these two cases involving cutting-edge technology to underscore language which became part of this state’s constitution over fifty years ago: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.” To pierce the anonymity the internet affords its audience, one must first prove “the abuse of that right.”
This publication is intended for general information purposes only and does not constitute legal advice. The reader should consult legal counsel to determine how the law may apply to specific situations.