Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, April 10, 2009

Appellate Court Reverses Trial Court; Suggests Test For Identification of Anonymous Posters In Defamation Action

In Independent Newspapers v. Brodie, the appellate court ruled that the trial judge abused his discretion when he ordered the defendants to identify anonymous posters in an Internet forum pursuant to a defamation action.

The Court reviewed the record and determined that Brodie had not identified the appropriate forum participants in his complaint. Because Brodie failed to assert his defamation action against the correct individuals, the Court reversed the trial judge’s order compelling the discovery of the forum participants’ identities.

The court also suggested the following test for trial courts to apply when confronted in future with a plaintiff's request to identify anonymous posters.

For guidance of the trial courts when future cases arise, the Court suggested a process to balance First Amendment rights with the right to seek protection for defamation, citing with approval the test from Dendrite Int’l, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Thus, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

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