NY- N.Y. Court Defines Test for Obtaining Identities Behind Online Posts

7-14-2008 New York:

Ruling is a case of first impression in New York

The authors of anonymous online posts that accused a former congressman of paying $25,000 to the mayor of Mamaroneck, N.Y., in connection with a home renovation project may soon find themselves the named defendants in a defamation action.

Westchester County Court Judge Rory J. Bellantoni held that after Richard Ottinger and his wife notified the online contributors of their right to intervene anonymously and stated a prima facie case of defamation against the fictitiously named defendants, the couple had sufficiently satisfied the standard necessary to pierce the free speech rights of the writers who allegedly posted false comments about the Ottingers on a Web site operated by The Journal News.

The posts appeared under the names "hadenough," "SAVE10543" and "aoxomoxoa."

Mark A. Fowler of Satterlee Stephens Burke & Burke, who represented the newspaper, said that while an Internet service provider cannot be held liable for the defamatory statements of its subscribers, many providers traditionally would turn over identifying information of users in a "knee-jerk fashion." By requiring a plaintiff to make a heightened showing before obtaining the identity of anonymous posters, Judge Bellantoni's ruling sets forth "important safeguards" for the entire online community, where speech sometimes gets "wild and wily," Fowler said.

The allegedly defamatory posts, which appeared on the "LoHud" site maintained by the Journal News, centered around an effort by Ottinger and his wife, June, to renovate their Mamaroneck home.

In September 2007, a post under the name "SAVE10543" accused the couple of presenting a fraudulent deed "in order to claim they own land under water," and "lying to the State" and other officials to secure permits for their home's construction. Subsequently, a post under the name "hadenough" maintained that the Ottingers were part of an "illegal scam." A third post by "aoxomoxoa" later chimed in that the mayor of Mamaroneck "took the juice from Richard and June Ottinger to the tune of $25,000 so they could build their starter Taj Mahal on a substandard lot."

In February 2008, the Ottingers brought a "John Doe" action against the anonymous writers.

Mr. Ottinger, who served as the dean of Pace University Law School from 1994 to 1999 and spent 16 years as a member of the U.S. House of Representatives, and his wife contended that the online statements defamed their "good name" and honest reputation. The couple sought, among other relief, $1 million in punitive damages and a "public apology" on the LoHud site.

After the Ottingers served a subpoena on the Journal News to compel the disclosure of the writers' identities, the newspaper made a motion to quash.

During a hearing in late May, Judge Bellantoni converted the action to a special proceeding to permit the Ottingers to seek pre-action discovery under CPLR §3102. He also ordered the Ottingers to post a notice on the LoHud site that gave the forum posters an opportunity to intervene "anonymously, or otherwise" in the action.

In July, after no one came forward in response to the court-ordered notification, Bellantoni turned to the merits of the Ottingers' request for the writers' identities.

"There is no question that the First Amendment protects the right of a person to speak anonymously. That protection, however, is no greater than the right of a person to speak when their identity is known," the judge wrote in Ottinger v. The Journal News, 08-03892, a case of first impression in New York.

He noted that Greenbaum v. Google Inc., 18 Misc.3d 185, 2007, constitutes the "only reported decision" in New York that addresses the rights of anonymous writers who post allegedly defamatory statements on the Internet.

"That case, however, failed to set a standard because the court found, as a matter of law, that the statements made were not defamatory," the judge wrote.

Judge Bellantoni then turned to the four-step test set forth by the Superior Court of New Jersey, Appellate Division, in Dendrite International v. Doe (Actual decision), 775 A.2d 756 (2001) (Law school copy with links to additionally cited cases), to guide his inquiry.

In Dendrite, the court held that a plaintiff who wants an Internet service provider to disclose the identity of anonymous posters must first "undertake efforts" to inform the writers that "they are the subject of a subpoena or application for an order of disclosure."

A plaintiff must also identify the "exact" alleged defamatory statements and "produce sufficient evidence supporting each element of its cause of action, on a prima facie basis."

Finally, a court "must balance the defendant's First Amendment right of anonymous free speech against the strength" of the plaintiff's case.

Bellantoni explained that he had already ordered the Ottingers to provide notice to the writers. And with the exception of constitutional malice, the Ottingers had sufficiently backed up each element of their prima facie defamation claim, the judge wrote.

Relying on the Delaware Supreme Court case of Doe v. Cahill, 884 A2d 451 (2005), he acknowledged the difficultly of proving actual malice before learning of the anonymous writers' identities and concluded that "the petitioners, at this point in the proceeding, need not prove this element to obtain pre-action disclosure."

Russell J. Ippolito, a solo practitioner in Tarrytown who represents the Ottingers, said he thinks that one individual used three separate aliases to defame his clients.

Ippolito said the next step is to look up who owns the Internet provider addresses linked to the posts. The addresses were given to him last week by the Journal News, he said.

In addition to Fowler, Glenn C. Edwards of Satterlee Stephens represented the Journal News. ..News Source.. by Noeleen G. Walder, New York Law Journal