In a decision which reinforced protections for the anonymity of online posters, the New Jersey Appellate Division held that a website could not be compelled to disclose the identity of an anonymous poster where the plaintiff failed to establish a prima facie case of defamation and where the postings were “rhetoric hyperbole” on matters of public concern. This case is significant because in addition to confirming the strict analysis required for compelling the disclosure, the Appellate Division affirmed a website’s standing to assert the constitutional rights of its users.
In Trawinskiv. John Doe, No. A-0312-14T1 (App. Div. June 3, 2015), plaintiff sought to compel NJ.com to disclose the identity of an anonymous poster on its local news blogs. On remand, the trial court, after conducting the required Dendrite analysis, issued an order and opinion denying plaintiff’s request for the subpoena. While the trial court found that plaintiff had satisfied the first two prongs of Dendrite, by (1) attempting to notify the anonymous poster of her subpoena request, and (2) identifying a statement that constituted “actionable speech,” the trial court nevertheless held that plaintiff had failed to satisfy the third Dendrite prong, which requires the party requesting the subpoena to establish a prima facie cause of action for the relief sought against the anonymous poster. As the plaintiff was unable to establish a prima facie case for defamation against the poster, the trial court denied its request for a subpoena. The Appellate Division affirmed for substantially the reasons as set forth in the trial court’s order, while noting that in the face of a defamation claim, “expressions that clearly reflect opinion on matters of public concern are protected and are not actionable.”
Moreover, while no published decision in New Jersey has addressed the issue of a website or news provider’s standing to assert claims on behalf of its users, the Appellate Division, relying on case law from other jurisdictions, found that NJ.com had standing to contest the subpoena. The Appellate Division recognized that
(1) anonymous commentators to the [newspaper] website face practical obstacles to asserting their own First Amendment rights because doing so would require revelation of their identities; (2) the newspaper itself displays the adequate injury-in-fact to satisfy . . . case or controversy requirements; and (3) the newspaper will zealously argue and frame the issues before the [c]ourt.
This case provides guidance in understanding a website’s standing generally to assert claims on behalf of its users in fending off subpoenas, and is especially significant for websites whose business model relies on their ability to protect the anonymity of their users.