Victims of Alleged Defamation Can Compel Internet Service Provider to Disclose Anonymous Poster’s Identity

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.

A New Jersey court ruled that a religious organization's leaders who allegedly were defamed by anonymous posts on a website could compel the poster's internet service provider (ISP) to disclose his identity so that he could be sued.

Four leaders of a religious organization (the "plaintiffs") filed a lawsuit that claimed they were being defamed by an anonymous person (the "defendant") who made frequent and malicious postings about them and their organization on social media. The plaintiffs alleged that the defendant had defamed them, cast them in a false light, and intentionally and negligently caused them emotional distress through postings that appeared on a website.

The lawsuit cited postings claiming that two of the plaintiffs were engaged in an extramarital affair. The lawsuit named the ISP as an additional defendant. The plaintiffs asked the court to compel the disclosure of the defendant's identity so that the lawsuit against him could proceed. The defendant responded by asking the court for a protective order barring the disclosure of his identity. The court refused to issue a protective order, and the defendant appealed.

A state appeals court applied a four-part test that is applicable whenever "trial courts are faced with an application by a plaintiff for an order compelling an Internet Service Provider (ISP) to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations or businesses." Under this test, a trial court must "first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure." Thereafter, a plaintiff must:

1. Identify the fictitious defendant with "sufficient specificity" to allow for a determination as to whether the defendant is a real person or entity who may be sued;
2. Demonstrate a good-faith effort to comply with the requirements of service of process;
3. Present sufficient facts from which it may be concluded that the suit can withstand a motion to dismiss; and
4. Provide a request for discovery with the court, along with a statement of reasons justifying the specific discovery requested as well as identification of a limited number of persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information about defendant that would make service of process possible.

If these four steps are satisfied, then a trial court "must balance the defendant's First Amendment right of anonymous speech against the strength of the case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."

The anonymous defendant argued that the third requirement was not met since the plaintiffs' defamation claim would not survive a motion to dismiss. The court disagreed. It noted that defamation consists of a false and defamatory statement concerning another, and the publication of that statement to others. There was no question, the court concluded, that the plaintiffs' defamation claim would survive a motion to dismiss.

The defendant argued that the plaintiffs were public figures who had to prove malice in order to prevail in a defamation claim, and this high standard was not met. Malice in this context means that a person making a defamatory statement did so knowing that it was false, or with a "reckless disregard" as to its truthfulness. This elevated standard is based on the fact that persons who seek positions of public notoriety do so with an understanding that they will be the targets of more criticism than ordinary individuals. The court noted that the plaintiffs denied being public figures, and there was sufficient evidence that they were not for their defamation claim to survive a motion to dismiss.

The court rejected the defendant's defense that his postings were protected by the First Amendment:

The court must balance the defendant's First Amendment right of anonymous free speech against the strength of the case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed. The defendant seeks to couch the posts on the website as legitimate comments on the governance of a religious entity … thereby invoking a cherished First Amendment right. However, accusing individuals of adultery in a public forum is not the kind of robust, publicly-spirited debate entitled to the protections of the First Amendment. Individuals choosing to harm another … through speech on the Internet cannot hope to shield their identity and avoid punishment through invocation of the First Amendment.

The court concluded that the plaintiffs "have presented a valid claim and should be given the opportunity to pursue it."

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? This case demonstrates that in some cases they may be able to assert defamation claims, and compel the poster's ISP to disclose a poster's 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." 2015 WL 10372230 (N.J. App. 2016).