NEW YORK, NY — A Westchester County, NY, judge has set a precedent for determining under what circumstances a civil plaintiff may obtain the real identities of people who post potentially defamatory statements online. In a nutshell, online publishers may be compelled to reveal identities when anonymous posters decline to take the opportunity to act on their own behalf and when sufficient prima facie evidence of defamation exists that the case will not collapse.A $1 million lawsuit against four John Does was filed in February 2008 by former U.S. congressman Richard Ottinger and his wife June. The Ottingers took umbrage when several anonymous users of The Journal News’ website publicly accused them of bribing the mayor of Mamaroneck, NY, and other public officials in an attempt to defraud state land authorities and “build their starter Taj Mahal on a substandard lot.” The Ottinger’s served the newspaper with a subpoena seeking the posters’ identities, and the newspaper moved to quash.
In late May, Westchester County Court Judge Rory J. Bellantoni allowed the Ottingers to proceed with discovery on the condition they posted a notice on the paper’s website letting the anonymous Does know they were the subject of a subpoena and offering them the chance to come forward on their own. When no one came forward by July, the judge ruled the Ottingers had sufficiently backed up prima facie evidence of defamation and the paper was ordered to reveal the posters’ identities.
“There is no question that the First Amendment protects the right of a person to speak anonymously,” Bellantoni wrote in his decision. “That protection, however, is no greater than the right of a person to speak when their identity is known.”
The ruling was the first of its kind in New York.
Mark A. Fowler, the attorney who represented The Journal News, said the ruling set an important standard for online publishers. Instead of simply rolling over and giving in to the demands of a subpoena, online publishers now may feel secure in asking the court to require plaintiffs extend more effort during discovery.
The ruling sets forth “important safeguards” for the entire online community, he said.
