Define That Term #257
The New York Legal Blog Round Up

To What Extent is an Anonymous Blogger Protected in a Defamation Action?

Gavel2 Via the Adjunct Law Prof Blog, I learned of a very interesting New York County Supreme Court decision, Matter of Greenbaum v Google Inc., 2007 NY Slip Op 27448. 

In this decision arising from a pre-action motion for discovery, the petitioner, a school board member, sought disclosure from Google of the name of an anonymous blogger who allegedly defamed her by calling her a "bigot."

The Court held that the statement made by the anonymous blogger was an opinion and thus protected speech, and even if it had not been protected speech, anonymous bloggers are entitled to certain procedural safeguards prior to disclosure of their identities:

The appellate courts of this State have not articulated the standards that should govern applications for the disclosure of the identities of anonymous Internet speakers. Courts elsewhere have repeatedly recognized that the First Amendment protects the right to participate in online forums anonymously or under a pseudonym, and that anonymous speech can foster the free and diverse exchange of ideas. (See e.g. Sony Music Entertainment Inc. v Does, 326 F Supp 2d 556 [US Dist Ct, SD NY 2004]; Best Western Intl., Inc. v Doe, 2006 US Dist Lexis 56014 [US Dist Ct, Ariz 2006].) The cases also recognize, however, that the right of anonymous speech is not absolute and cannot shield tortious acts such as defamation. In determining applications for the disclosure of the identities of anonymous Internet speakers, the courts therefore perform a balancing test between the interest of the plaintiff in seeking redress for grievances (in the case of defamation, protection of the plaintiff's reputation) and the First Amendment interest of the speaker in anonymity. (See e.g. Columbia Ins. Co. v, 185 FRD 573, 578 [ND Cal 1999]), Dendrite Intl., Inc. v Doe, 342 NJ Super 134 [App Div 2001] ["Dendrite"]; Matter of Baxter, 2001 US Dist Lexis 26001 [WD La 2001].)

Intervenor urges that this court follow Dendrite in deciding Greenbaum's disclosure request. Dendrite requires that the anonymous Internet speakers be given notice of the application for discovery of their identities and an opportunity to be heard in opposition, and that the plaintiff specify the particular statements that are alleged to be defamatory. (342 NJ Super at 141). The court agrees with these requirements and has followed them here. Dendrite also conditions disclosure of the speakers' identities on an evidentiary showing of the merits of the plaintiff's proposed defamation cause of action. While Dendrite is persuasive authority, the court need not reach the issue of the quantum of proof that should be required on the merits because, here, the statements on which petitioner seeks to base her defamation claim are plainly inactionable as a matter of law.

Not surprisingly, this decision has received quite a bit of attention across the blogosphere.

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Ron Coleman

Yeah, but when we find out your identity, Nicole, why we're going to --


Never mind.

Elizabeth Randisi

Anyone see last week's episode of Boston Legal? The firm filed a defamation suit against YouTube for posting a video without the subject's consent (and lost).

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