Actions to Identify Anonymous Internet Posters on the Rise

Originally published April 13, 2011

Keywords: Internet, anonymous posts, First Amendment, Dendritep>

Technology that provides a platform for Internet users to express their views on a range of topics has proliferated over the past several years. Many of these technologies, such as financial message boards, blogs, social networking websites and e-mail, allow users, or "posters," to express themselves anonymously by using pseudonyms traceable only through the hosts of the sites or their Internet service providers. As such speech has increased, so to have actions against Internet-based companies—such as Yahoo!, Facebook, Twitter and Microsoft—seeking to discover the identity of someone who posted allegedly defamatory material. But courts have adopted a standard that creates challenges to obtaining this information.

Although some plaintiffs bring defamation actions to redress a legitimate injury to reputation, courts have recognized that the primary goal of many plaintiffs in the "new breed" of defamation actions is to ridicule, harass and silence an anonymous speaker and hopefully silence others like him or her as well.1 Internet-based companies have an incentive to protect their users from such baseless and harmful attacks as many of these companies generate a significant portion of their revenue through users browsing and interacting with their website. A perception among Internet users that a company has failed to adequately protect their anonymity would likely lead to lower website traffic and ultimately adversely impact that company's revenue. On the other hand, individuals and companies may sometimes need to identify an anonymous poster in order to protect their legitimate pecuniary and proprietary interests against defamatory speech posted on the Internet.

The US Supreme Court has held that the First Amendment protects a person's right to speak anonymously and that those protections fully extend to speech on the Internet.2 The right to speak anonymously, however, is not absolute. An anonymous speaker, like a known one, has no First Amendment right to engage in defamation,3 and parties certainly have a right to seek redress for defamatory communications. In light of these competing interests, courts have sought to adopt an approach that appropriately balances a person's right to speak anonymously on the Internet against another person's right to protect his or her reputation.

One approach, adopted by the New Jersey Supreme Court in Dendrite International Inc. v. Doe No. 3,4 and later modified by the Delaware Supreme Court in Doe v. Cahill,5 has become the benchmark that courts consider when deciding whether to reveal the name of an anonymous Internet poster who allegedly defamed a plaintiff. This is now commonly known as the Dendrite- Cahill standard.

The Dendrite court adopted a four-part test. A plaintiff must (i) provide sufficient notice to anonymous posters that they are the subject of an application to disclose their identity; (ii) identify the exact...