Wednesday, March 24, 2010

Anonymous Internet Defamation

If you have any presence on the Internet, sooner or later you will have to cope with anonymous defamation. So ... what can you do about it? The first thing that everyone wants to know, of course, is the identity of the person who posted or emailed the defamatory statement anonymously. However, the First Amendment to the U.S. Constitution generally protects anonymous speech. A recent New Jersey Appellate Division case (A.Z. (a minor) and B.Z. (on behalf of A.Z., as parent) v. John Doe and Jane Doe, Docket No. A-5060-08T3 (App. Div. March 8, 2010)) laid out two key elements that are required to force someone (typically an Internet Service Provider) to divulge the identity of the anonymous person. As lawyers like to do, let's call the anonymous person "John Doe."

In a nutshell, there are two key requirements you must satisfy if you want to force an ISP to tell you John Doe's identity. First, you need to prove to the court that you have all of the elements necessary to prove your case for defamation. Second, you need to persuade the court that your need for John Doe's identity outweighs John Doe's First Amendment right of anonymous speech.

If you are like me, its easy to quickly get bored reading lengthy articulations of intricate facts of legal cases. So, I'll try to keep it short, but this one is worth reading. The case arose when Jane Doe sent an email to a faculty advisor of a high school honors club. The email attached photos allegedly taken from posts on FaceBook showing various students holding beer cans and bottles and a beer funnel and inhaling what appeared to be an illicit drug. In one of the photos, A.Z. (the plaintiff in the case) is allegedly depicted poised to toss a ping pong ball on a table containing several plastic cups and beer cans. The email also alleged that the students depicted were "breaking their contracts [with the school] and breaking the law." The email was then forwarded to the principal, the school superintendent and the police. The police ultimately chose not to prosecute.

The trial court was persuaded that A.Z. had established a prima facie case for defamation (the first requirement), but did not feel that A.Z.'s need for John Doe's identity outweighed John Doe's First Amendment right of anonymous speech (the second requirement). The appeals court disagreed and found that A.Z. had not established a prima facie case for defamation.

In order to establish a case for defamation, one needs to prove that: (1) the defendant made a defamatory statement of fact about the plaintiff, (2) the statement was false, (3) the statement was communicated to a third party, and (4) the defendant knew the statement was false or faild to exercise due care in ascertaining its truth or falsity. In this case, the appeals court was not persuaded that the defendant's statements (i.e., that the students depicted were "breaking their contracts [with the school] and breaking the law") were false. Oddly enough, according to the appeals court decision, A.Z. never provided any evidence that the statements were false; not even a sworn affidavit. Having found this, the appellate court did not bother analyzing the other factors.

Long story short ... if you want to find out who is defaming you on the internet, you had better be prepared to swear under oath that the defamatory statements are false.