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Court Protects Anonymous Internet Critics of New Jersey Company

Nov. 29, 2000

Court Protects Anonymous Internet Critics of New Jersey Company

Judge Upholds Public Citizen’s First Amendment Arguments

WASHINGTON, D.C. — Adopting arguments made by attorneys for Public Citizen, a New Jersey Superior Court has rejected a company’s attempt to discover the identities of anonymous Internet message posters by going to court.

The company, Dendrite International, failed to meet the stringent legal standards required for them to obtain subpoenas for the disclosure of the identities of people who post Web messages about those companies, New Jersey Superior Court Judge Kenneth MacKenzie ruled this week.

“Several other courts have articulated similar standards for deciding whether to compel the identification of anonymous Internet speakers, but MacKenzie s decision marks the first time that a judge has rejected a request for identification,” said Paul Levy, who filed a brief for Public Citizen as a friend of the court. “By setting forth strict evidentiary standards for compelled identification, and then showing that these standards can produce real protection for anonymity, this decision is a tremendous victory for free speech.”

Levy predicted that for this reason, as well as MacKenzie’s thorough analysis of constitutional rights involved, the decision is likely to be especially influential in future cases.

The court issued the ruling in a case in which Dendrite International, a supplier of sales force software products and support services to the pharmaceutical industry, sued four people who posted messages anonymously about the company on a Yahoo! message board. Dendrite alleged that three of the message posters made false statements, that two of them who identified themselves as employees violated employment agreements, and that three of them published secret information. After Dendrite asked the court to authorize it to pursue discovery to identify the defendants, MacKenzie ordered Dendrite to post a notice of its request on the Yahoo! message board to alert the potential defendants that their anonymity was at issue. Two of the posters hired lawyers to defend their right to remain anonymous, and Public Citizen entered the case as a friend of the court to argue for a limited right to anonymity.

The court accepted Public Citizen’s argument that the right of companies to sue for alleged wrongful behavior “must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously.” To achieve this balance, MacKenzie adopted a four-part test, borrowed from a decision by a federal trial judge in San Francisco, to ensure that the right to speak anonymously can be lost only if the plaintiff can show that it had a valid case against the speakers that could not be pursued without identifying the speakers.

In deciding whether to allow Dendrite to subpoena Yahoo! for the defendants’ identities, the judge considered both the complaint filed by the company and affidavits and exhibits presented by both sides. The judge ruled that the company had presented enough proof to warrant the pursuit of discovery against two of the posters, who had identified themselves as employees of Dendrite and may have violated their employment agreements.

Two other defendants, however, were entitled to remain anonymous because the company had not presented sufficient evidence that their comments had harmed Dendrite or that their statements had revealed company trade secrets. More importantly, said MacKenzie, the company “failed to provide this Court with ample proof from which to conclude that John Does Nos. 3 and 4 have used their constitutional protections in order to conduct themselves in a manner which is unlawful or that would warrant this Court to revoke their constitutional protections.” MacKenzie indicated that he would be willing to consider the rights of the first two John Does if they advanced sufficient arguments to warrant protecting them from disclosure, as well.

Public Citizen argued in its brief that because the main purpose of such suits is often to unmask the company’s critics, the identification of those critics should be treated as a major form of relief that cannot be awarded without proof of wrongdoing. A company should not be able to deny members of the public the right to speak anonymously simply by filing a complaint and making vague allegations of wrongdoing.

The Internet, Levy argued, is “the modern equivalent of the Speakers’ Corner at Hyde Park. That’s where anybody can stand up and voice their opinions — however silly, profane or brilliant they might seem — to anyone who chooses to listen. By establishing tough standards that companies must meet before anonymous speakers may be identified, and then actually applying those standards to protect the only two defendants who came to court to defend themselves, while inviting the other two speakers to explain why they, too, should be protected, Judge MacKenzie has set an important precedent protecting the free speech rights of all Internet posters.”

Public Citizen filed the brief because it champions free speech rights. The organization recently represented a person who posted anonymous messages on a Yahoo! message board about Thomas & Betts Corporation, a Tennessee manufacturer of electrical components. The company dismissed the case with a statement that it did not want to chill free speech on the Internet. Public Citizen is also representing an employee who anonymously posted a message on the Internet about an executive of Ohio-based AK Steel Company. The executive has sued to learn the identity of the employee for this allegedly defamatory posting.

J.C. Salyer of the American Civil Liberties Union of New Jersey Foundation was local counsel.