The internet – blogs and other forms of social media in particular – have created a host of more effective ways to widely disseminate information to the masses that were not traditionally available. Before one writer’s point of view could wind up on computers and smart phones around the globe with the click of a mouse, the potential audience for an opponent to express a viewpoint – right, wrong, or indifferent – was somewhat limited. Even the largest traditional print copy magazines and newspapers (to the extent that they have not abandoned their print formats for electronic copy versions) have a finite number of subscribers. Consequently, when the nature of the information being disseminated through the blogosphere is negative, the implications to an individual or a business at the receiving end of the blogger’s keystrokes can be particularly devastating. Due to the relative anonymity with which bloggers can operate on the internet, shutting down a defamatory blog site can pose unique challenges to the litigators representing the parties involved.
On September 26, 2012, the New Jersey Appellate Division issued a decision in Somerset Development, LLC, et al. v. Cleaner Lakewood, et al. The central issue before the Appellate Division was whether the plaintiff in a defamation suit over anonymous postings on a Google-hosted internet blog could compel Google to hand over the anonymous bloggers' names through a third-party subpoena issued by the plaintiff’s counsel. Although the defendants were represented by counsel, demonstrating that at least one or more of the them is a human being with the wherewithal to seek the assistance of an attorney, the anonymous authors were never properly served with process due to their elusive status. In an effort to find out who they were in order to, among other purposes, properly serve them with a copy of the complaint, the plaintiff’s attorney served a third-party subpoena on Google to compel disclosure of the internet authors’ identities. The trial court quashed the subpoena, and the plaintiff appealed.
The plaintiff’s complaint accused the anonymous defendant bloggers of making certain derogatory posts about the plaintiff real estate developer’s ability to leverage a lucrative land deal on public property to its private benefit. Under the plaintiff’s defamation theory, the comments constituted actionable, false allegations of wrongdoing and criminal activity.
Concluding that the bloggers’ anonymous speech was protected by the First Amendment, and therefore that the trial court properly quashed plaintiff’s subpoena to Google seeking to obtain the identities of the nameless bloggers, the Appellate Division reaffirmed the four-prong test set forth in Dendrite International, Inc. v. John Doe No. 3, 342 N.J. Super. 134 (App. Div. 2001). The so-called Dendrite test sets forth an analytical framework that plaintiffs must establish before they can compel internet service providers or other entities or individuals to furnish the identities of anonymous online authors. The Dendrite test is comprised of the following components:
- the plaintiff must undertake efforts to notify the anonymous poster(s) that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendant(s) a reasonable opportunity to file and serve opposition to the application;
- the plaintiff must identify and set forth the exact statements purportedly made by each anonymous poster that the plaintiff alleges constitutes actionable speech;
- plaintiff must establish a prima facie cause of action that forms the basis for the relief sought against the anonymous defendant(s); and
- the plaintiff must file a request for discovery with the Court, along with a statement of reasons justifying the specific discovery requested, as well as identifying 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 the defendant(s) that would make service of process possible.
The Appellate Division’s continued acceptance of the four-pronged inquiry first established in Dendrite crystallizes the requirement under New Jersey law that plaintiffs be able to substantively establish a prima facie cause of action for the relief sought at the early stages of the litigation when dealing with anonymous internet postings. This is embodied in element 3 of the Dendrite test set forth above. For plaintiffs, this means a heightened pleading requirement and the necessity to withstand substantive scrutiny of their claims from the outset. For defendants, this ensures an ability to attack a plaintiff’s pleading on its face for the sufficiency of the substantive allegations presented without first forcing the defendants to participate in costly, potentially revealing discovery.