DEFAMATION BY ANONYMOUS ELECTRONIC PUBLICATION

Electronic media such as the internet, e-mail, social web sites, blogs and more have become a primary vehicle for personal and business communication. The less formal writing style adopted by many, the apparent willingness to post almost anything, and the relative ease of posting anonymously, have caused these media to become a significant source of defamatory publications. The results of such defamatory electronic statements can be devastating to both individuals and businesses. However, there are many challenges to identifying an anonymous electronic publisher of a defamatory statement in order to seek redress for the damage caused by such defamation. Nevertheless, many individuals and businesses cannot afford the false negative publicity and must forge ahead to protect their name and reputation. In many states, including Pennsylvania, developing case law has established a procedure that is becoming generally accepted, with some variations, throughout the country.

In Pennsylvania, the process is set forth in Pilchescky v. Gatelli, 12 A.3d 430 (Pa.Super. 2011).There, the plaintiff hosted a website message board where persons could observe ongoing political discussions and create a registered user account to participate in those discussions. Registered users selected a unique username or pseudonym and only registered users were able to post messages. The plaintiff maintained a list of registered users. The defendant was the former president of Scranton City Council who the plaintiff claimed falsely and publicly accused plaintiff of terrorism, making death threats, stalking, harassment, harassment by communication and intimidation in the course of his political activities and the operation of his website. The defendant counterclaimed and sought to compel the plaintiff to identify 46 “John Doe" posters on the message board in order to join them as additional defendants. The issue of the propriety of compelling identification of the anonymous John Doe posters reached the Superior Court in 2011.

Recognizing that the First Amendment protection of the right to speak anonymously is not absolute, the Superior Court pointed out that States have a justifiable interest in preventing certain evils. Further, the Pennsylvania Supreme Court has specifically held that libel is one of those evils. The legitimate state interest underlying the law of libel is compensation of individuals for harm inflicted on them by defamatory falsehood. States may impose some regulation of speech without infringing upon protected First Amendment rights. Conversely, the United States Supreme Court has concluded that First Amendment protections apply to internet communications. Any ruling that does not fully protect the anonymity of the John Doe internet publisher may deter anonymous internet speech.

The Superior Court looked to appellate decisions in New Jersey and Delaware for guidance on the correct standard to apply to balance the First Amendment rights of anonymous internet publishers against the need to provide redress to defamed plaintiffs. See: Dendrite Int’l Inc. v. Doe, No. 3, 775 A.2d 756 (N.J. Super., App. Div. 2001); Doe No. 1 v. Cahill, 884 A.2d 451 (De. 2005). From these cases, the Superior Court adopted a modified Dendite/Cahill test, with four (4) requirements that must be addressed: 1) notification; 2) sufficiency of the evidence; 3) petitioner acting in good faith and with necessity; and 4) a balancing test.

1. Notification

The reviewing court must ensure that the John Doe defendant receives proper notification of a petition to disclose his identity and a reasonable opportunity to contest the petition. Because people stop using or cancel email addresses, the reviewing court should inquire of the proprietor of the electronic media to determine the most effective means of notification. Depending on the circumstances, service by publication may be appropriate.

2. Sufficiency of the Evidence

A plaintiff who petitions the court to disclose the identity of an anonymous electronic publisher must present sufficient evidence to establish a prima facie case for all elements of a defamation claim, within the plaintiffs control, such as would survive a motion for summary judgment. In doing so a Plaintiff may rely on exhibits, depositions, or affidavits—all evidence that would be admissible and relevant in response to a motion for summary judgment.

There is some confusion surrounding the terminology used to describe the prima facie requirement of the Dendrite/Cahill test. The important feature of this test is to emphasize that the plaintiff must do more than simply plead his case. The objective is to properly balance a defendant’s First Amendment right to speak anonymously against an injured plaintiff’s right to seek redress. The summary judgment standard properly achieves this balance. This is particularly so in Pennsylvania, where the summary judgment test requires a plaintiff to establish a prima facie case.

The Pennsylvania summary judgment standard is two-fold:

…any party may move for summary judgment…(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Under prong (2), a party is entitled to summary judgment where the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and therefore there is no issue to be submitted to a jury. Thus, in Pennsylvania, the prima facie test and the summary judgment test are identical. Sufficient evidence requires more than mere pleadings; a plaintiff must present actual evidence.

The reference point for the evaluation of the sufficiency of the evidence in a defamation action is 42 C.S.A. § 8343 which sets forth the elements of the cause of action. A plaintiff asserting a claim based on libel need not establish special damages (i.e. actual economic harm or pecuniary loss). However, every defamation plaintiff must prove “actual harm." Injury to reputation, impairment of standing in the community, personal humiliation and mental anguish are types of actual harm “not limited to out-of-pocket loss" compensable for defamation. There need be no evidence which assigns an actual dollar value to the injury. Economic loss suffered by a business (i.e., demonstrable loss of business, loss of clients or customers) will establish an actual compensable injury in the commercial context.

3. Petitioner in Good Faith

The Petitioner must submit an affidavit asserting that the requested information is sough in good faith, is unavailable through other means, is directly related to the claim, and is fundamentally necessary to secure relief. Requiring the affidavit imposes on the defamation plaintiff the importance of the interests at stake; i.e. once someone’s anonymity is taken away they cannot get it back, which may chill protected anonymous speech.

4. Balancing Test

Finally, the court must expressly balance the anonymous defendant’s First Amendment rights against the strength of the plaintiff’s prima facie case. In balancing the equities the reviewing court should examine:

1) The defamatory nature of the comments;

2) The quantity and quality of evidence presented;

3) Whether the comments were privileged; and

4) The forum in which the actionable comments arose (i.e. comments on matters of public importance or those who criticize public officials are entitled to robust protection for it is in the public forum that the First Amendment right of speech is strongest).

The reviewing court may impose additional requirements on a case-by-case basis as necessary to ensure flexibility in the process. For example, in Pilchescky, it was suggested the trial court require the Plaintiff to identify every pseudonymous John Doe defendant by call sign, the actionable statements to that person, and the specific claims pursued. According to the Superior Court, this information should already be contained in a well-pleaded complaint. Without sufficient specificity in the petition, the reviewing court’s task would be insurmountable. The actionable language at issue will be readily available to a plaintiff and its formal inclusion in a motion seeking disclosure will assist the reviewing court in focusing the precise language in dispute. But, a case where it is one defendant and a few actionable statements, does not pose the same difficulties and therefore the reviewing court may see fit to simplify the process.

Before commencing litigation a plaintiff should carefully review the Pilchescky test and prepare to comply with its requirements. Doing so will greatly enhance the likelihood of success when petitioning the court to disclose the identity of an anonymous electronic publisher of defamatory statements and, ultimately, permit the plaintiff to successfully prosecute a defamation action.