Key point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are “published” (that is, communicated to other persons); and (4) that injure the other person’s reputation.

The Illinois Supreme Court ruled that a person who allegedly was defamed by an anonymous post to an article in an online newspaper could compel the poster’s Internet service provider to disclose his identity so that he could be sued. A newspaper’s online edition published an article describing the decision of a local resident (the “plaintiff”) to seek election to the county board of supervisors. Online readers could post comments in response to the article after completing a basic registration process. A few days later an individual using the name “Fuboy” posted a comment in which he described the plaintiff as “a Jerry Sandusky waiting to be exposed. Check out the view he has of Empire Elementary School.” Fuboy also made a second comment, stating: “Anybody know the tale of [the plaintiff’s] suicide attempt? It is kinda ‘It’s a Wonderful Life’ with Pottersville winning out.”

The plaintiff filed a defamation lawsuit against the newspaper and its parent company (the “defendants”). The plaintiff alleged that the comment made by Fuboy—that the plaintiff was a “Jerry Sandusky waiting to be exposed”—was defamatory because it imputed the commission of a crime (child molestation) to him. The newspaper provided the plaintiff with the Internet Protocol (IP) address acquired from Fuboy’s Internet service provider, Comcast Cable Communications LLC (Comcast). This was the IP address from which the comments had been transmitted in response to the online newspaper article.

The plaintiff issued a subpoena to Comcast, seeking the identity of the subscriber who had been assigned that IP address. A representative from Comcast advised the plaintiff’s counsel that it was preserving the records and information requested; that it had the name and address of only one account holder of the IP address at issue; and that it required a court order directing it to provide the information. The court entered an order directing Comcast to comply with the subpoena and to provide the information requested, with the conditions that Comcast would have to notify the subscriber and the subscriber would be allowed 21 days to contest the subpoena.

The subscriber’s counsel filed a motion to quash the subpoena. A trial court ruled that under Illinois law the identity of a defendant in a lawsuit can be disclosed if the plaintiff demonstrates “the reason the proposed discovery is necessary and the nature of the discovery sought.” The court concluded that to show that the disclosure of a defendant’s identity is necessary, a plaintiff “has the burden of setting forth allegations that would be sufficient to withstand a motion to dismiss … even if such a motion was not filed.” The court noted that this requirement was necessary “in order to protect any First Amendment interest possessed by the online commentator to engage in nondefamatory, anonymous speech.”Having concluded that the plaintiff’s allegation of defamation would survive a motion to dismiss, the court concluded that disclosing the defendant’s identity was “necessary” and therefore appropriate. Fuboy appealed this ruling.

A state appeals court began its ruling by noting that “in ordering the disclosure of a potential defendant’s identity … a court must balance the plaintiff’s right to redress for unprotected defamatory language against the danger of setting a standard for disclosure that is so low that it effectively chills or eliminates the right to speak anonymously and fails to adequately protect the chosen anonymity of those engaging in nondefamatory public discourse.” In defending the definition of “necessary” as surviving a motion to dismiss, the court noted that once a plaintiff demonstrates that his or her defamation claim would survive a motion to dismiss, an anonymous defendant has no First Amendment right to balance against the plaintiff’s right to redress because there is no First Amendment right to defame.”

The court noted:

A motion to dismiss tests the legal sufficiency of a complaint. The question to be answered is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, state sufficient facts to establish a cause of action upon which relief may be granted… . A court should not dismiss a complaint … unless it is clearly apparent no set of facts can be proved that would entitle the plaintiff to recovery … . To state a cause of action for defamation, a plaintiff must present facts showing “the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages. A defamatory statement is one that harms a person’s reputation because it lowers the person in the eyes of others or deters others from associating with her or him. A statement is defamatory per se if its harm is obvious and apparent on its face [such as] words imputing the commission of a crime.”

The court concluded that Fuboy’s statement imputed the commission of a crime to the plaintiff. It noted that at the time Fuboy’s comment was posted, the Jerry Sandusky sexual abuse scandal had dominated the national news for weeks. The court observed:

Sandusky was a football coach for the famed Penn State football program. Over the course of years, Sandusky allegedly sexually abused young boys. The degree to which Sandusky’s coaching colleagues knew of and failed to alert the appropriate authorities of Sandusky’s criminal activities became part of the scandal. In short, at the time of Fuboy’s comment, numerous men were testifying to the abuse they allegedly suffered at the hands of Sandusky when they were young boys. The general public was mindful of the fact Sandusky was accused of sexually abusing young boys. Stating that the plaintiff was “a Sandusky” while the scandal dominated the national news, coupled with the reference to Empire Elementary School, conveyed the idea that he was a pedophile or had engaged in sexual acts with children and, thus, had committed criminal conduct.

What This Means For Churches:

What recourse do church leaders have when they are potentially defamed by comments posted by anonymous persons on the Internet or social media? This case demonstrates that in some cases they may be able to assert defamation claims, and compel the poster’s Internet service provider to disclose his or her identity. However, this court concluded that the identity of anonymous posters in defamation lawsuits can be revealed only if the lawsuit would survive a motion to dismiss. This is an easy requirement to meet, since it only requires a court to determine “if the allegations of the complaint, when construed in the light most favorable to the plaintiff, state sufficient facts to establish a cause of action upon which relief may be granted.” To state a cause of action for defamation, a plaintiff must present facts showing “the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages.”

The court further noted that a statement “is defamatory per se if its harm is obvious and apparent on its face [such as] words imputing the commission of a crime.” Hadley v. Doe, 2015 IL 118000 (Ill. 2015).