Mar 212010
 March 21, 2010  Posted by  Court, Featured News, Online

Evan Brown reports on a case in New Jersey where the standards for unmasking an anonymous party articulated in Dendrite v. Doe were applied to a case involving a teenage girl who tried to unmask an anonymous party who sent pictures of her playing beer pong to her school administrators.

In A.Z. v. Doe, the trial court granted Doe’s motion to quash the subpoena served on Optimum Online because the court concluded that A.Z. had failed to meet the fourth prong of the Dendrite analysis, which balances First Amendment protection of anonymous speech against both the strength of the prima facie case and the plaintiff’s need for the anonymous speaker’s identity to be disclosed to proceed (see the four prongs as outlined in Dendrite, below the break). A.Z. appealed, and the appellate court upheld the trial court’s decision, but on different grounds. The appellate court held that A.Z. hadn’t met the third prong in the Dendrite analysis, i.e., she hadn’t made a prima facie case.

Read more of the background on this case on Internet Cases.

—- from Dendrite:

We offer the following guidelines to trial courts when faced with an application by a plaintiff for expedited discovery seeking an order compelling an ISP to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations or businesses. The trial court must consider and decide those applications by striking a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants.

We hold that when such an application is made, the trial court should first 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, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board.

The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.

The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(f), the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.

Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.

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