Anonymous postings or comments on Internet message boards, blogs, and other Internet sites can form the basis of an array of causes of action, including defamation, breach of employment contracts, breach of confidentiality or non-solicitation agreements, breach of fiduciary duty, misappropriation of trade secrets, and interference with prospective business advantage. Anonymous postings or comments may originate from current or former employees, disgruntled customers, or competitors, to name a few. Such postings create problems for businesses that are targeted or otherwise affected by such activities.
Although the Internet creates a perception of anonymity, everything one says or does online creates an electronic trail that can be traced back to the user. A user’s identity can typically be obtained through the discovery of the user’s Internet service provider, which will usually have the user’s name and address on file from when the user paid for the Internet service. A user’s identity could also be traced through the user’s Internet Protocol address—the identity of the computer used to access the Internet. Websites typically record this information from users that access their sites. In addition, websites generally maintain records of users’ login information and e-mail addresses, which could be used to identify the person who made an anonymous posting or comment.
To obtain identifying information of someone who made an anonymous posting or comment, a company may file a lawsuit against “John Doe” as a placeholder defendant and serve third-party subpoenas on Internet Service Providers and/or message board or blog hosts, depending on the facts of the case, seeking identifying information of the user in order to serve him or her with process. Third parties will generally object to such subpoenas based on concerns for their customers’ privacy and on the grounds that such information is protected from disclosure by electronic communications laws, such as the Stored Communications Act. Nevertheless, a court could order the disclosure of identifying information of the person who made an anonymous posting or comment, provided certain elements are met.
Although courts have periodically articulated a test for discovery of the identity of an anonymous speaker, the decision in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001),is the first decision by an appellate court on this issue. In Dendrite, the New Jersey Appellate Division held that a plaintiff seeking discovery to identify an anonymous defendant must:
- provide notice to the John Doe and allow time for the John Doe to retain counsel and respond;
- identify John Doe’s words on which the claims are based and identify the claims;
- plead the elements of each claim;
- provide sufficient evidence to create a prima facie case on each claim; and
- satisfy a balancing test by persuading the court that plaintiff’s interests in proceeding with the action outweigh defendant’s interest in remaining anonymous.
Since the court’s decision in Dendrite, other state appellate and federal district courts have articulated similar schemes incorporating the main principals in Dendrite: notice and an opportunity to respond; legal sufficiency of claim; and a showing that the plaintiff has a reasonable chance of prevailing on the merits. The main difference that has surfaced among jurisdictions is whether the court should apply a balancing test after a showing has been made for the discovery. Although some courts have held that such a test is unnecessary because the requirement of a legal and evidentiary showing provides sufficient balancing, and that it would be unjust to deny a plaintiff the right to proceed after such a showing, other courts have held that the balancing requirement in Dendrite must also be satisfied.
Although the test used to determine whether identifying information of a person who made an anonymous posting or comment should be disclosed may vary depending on the jurisdiction, it is clear that businesses that are the target of anonymous wrongdoing have the ability to combat such activity. Depending on the statement or the potential impact it may have on a company’s profits, customer relationships, or reputation in the industry, a business that is targeted or otherwise affected by such anonymous activity should evaluate its legal options to pursue the person who made the statement.