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Scary Court Decision on Public Postings


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This decision should make anyone think twice about what they say in Bulletin Board posts. Even in "absolute free speech, anything goes" things are getting dicey for posters, at least those who attack real world people.

Note, this is a "public domain" decision and not subject to copyright laws.

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Matter of Ottinger v. Non-Party The Journal News, 08-03892

Decided: June 27, 2008

Justice Rory J. Bellantoni

WESTCHESTER COUNTY

Supreme Court

The Attorneys for the non-party Journal News are Mark A. Fowler and Glenn C. Edwards

The attorney for petitioners is: Russell J. Ippolito

Justice Bellantoni

Click here to see Judicial Profile

The instant action was commenced by the filing of a summons and complaint on February 25, 2008. The complaint alleges that certain defamatory statements were made concerning Richard Ottinger and June Ottinger, which statements were posted on a "LoHUD" blog hosted by the New York Journal News. The defendants named in that action were John Doe 1-100 and Jane Doe 1-100.

In the complaint, plaintiffs set forth several statements by certain anonymous persons posted on the LoHUD blog. Those statements include the following:

"It now appears that it has been proven, that the Ottinger's, . . . have presented a FRAUDULENT deed in order to claim that they own land under water . . . . We are talking about the Ottingers LYING to the State, the Building Department, the ZBA and necessarily either bribing or coercing other people to do the same." (Posted September 11, 2007 by SAVE10543.)

"Equally outrageous, was that as Ms. McCrory was informing the dumbstruck BOT of the Ottingers criminal behavior . . . and advocated for the Ottinger's position in order to further their illegal scam." (Posted September 15, 2007 by hadenough.)

"He [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. Their money bought a compliant ZBA and Building Inspector . . . " (Posted September 19, 2007 by aoxomoxoa.)

THEY PAID THE RIGHT PEOPLE OFF! They started with taking care of the Mayor, everybody knows that. I would guess the Building inspector and Zoning Board were not forgotten in their largesse. The Ottingers have been very generous in greasing the wheels of corruption. With the news of the fraudulent deed they submitted it becomes quite clear that they also must have taken care of the surveyor and the prior owner of the property, unless they are two of the dumbest people on earth! (Posted September 23, 2007 by SAVE10543.)

In an effort to ascertain the names of the anonymous bloggers, plaintiffs served a subpoena on The Journal News on February 28, 2008.

On March 21, 2008, The Journal News made a CPLR §2304 motion to quash the subpoena. On April 11, 2008, plaintiffs cross-moved to compel pursuant to CPLR R.3124 or, in the alternative, to convert the instant action to a special proceeding pursuant to CPLR §103© and allow pre-action disclosure pursuant to CPLR §3102©.

On May 28, 2008, this court held a hearing regarding the pending motions. Upon stipulation of the parties, it was ordered that the instant action be converted to a special proceeding allowing plaintiffs (now petitioners) to seek pre-action disclosure pursuant to CPLR §3102©.

The internet is creating emerging legal issues, from jurisdiction to discovery. The identification of anonymous bloggers-posting defamatory statements on the internet - is one of those issues. 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. Anonymous speech is not absolute and does not provide a safe haven for defamatory speech.

The New York Court of Appeals and Appellate Divisions have not yet addressed this issue. The only reported decision in New York is from the Supremes Court New York County (Greenbaum v. Google, Inc., 18 Misc.3d 185 [2007]). 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 parties have urged this court to consider persuasive authority from other jurisdictions, specifically the Superior Court of New Jersey, Appellate Division decision in Dendrite International v. Doe (775 A.2d 756 [2001]) and the Delaware Supreme Court decision in Doe v. Cahill (884 A2d 451 [2005]). The court finds both decisions helpful in reaching a decision in this matter.

In Dendrite the Superior Court of New Jersey, Appellate Division established four guidelines in deciding applications for expedited discovery and compelling an internet service provider to disclose the identity of anonymous internet posters who are sued for allegedly violating the rights of individuals or corporations:

[T]he 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 than 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 defendants. In addition to establishing that its action can withstand a motion to dismiss . . . the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis; and

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 properly to proceed.

At the hearing on May 28, 2008, the court applied the first step in Dendrite.

The court reserved its decision on the pending motions and directed the petitioners to undertaken certain steps specified by the court to post a notification on certain Forums making known (a) the existence of the special proceeding, (B) the relief sought herein, and © the fact that any individual who believed that his or her rights might be affected could seek to intervene anonymously or otherwise in the special proceeding to appear on June 25, 2008. The notice was timely posted on the Forums in compliance with the direction of the court. On June 25, 2008, the court held a further hearing on the matter on pending motions. At that time, no individual sought to intervene.

At this point the court finds that the petitioners in this matter have identified and set forth the exact alleged defamatory statements made by each anonymous poster. The complaint and all information provided to the court establishes that petitioners have set forth a prima facie cause of action against the fictitiously-named defendants. Petitioners have produced sufficient evidence supporting each element of its cause of action, on a prima facie basis, except that of constitutional malice.

With regards to constitutional malice, the court finds The Delaware Supreme Court Doe v. Cahill (884 A2d 451 [2005]) helpful. In Cahill, the Delaware Supreme court held a plaintiff must produce evidence on all elements of a defamation claim within the plaintiff's control. The constitutional malice element is not within a plaintiff's control. As the Delaware court pointed out,

We are mindful that public figures in a defamation case must prove that the defendant made the statements with actual malice. Without discovery of the defendant's identity, satisfying this element may be difficult, if not impossible. Consequently, we do NOT hold that the public figure defamation plaintiff is required to produce evidence on this element of the claim.

(Id. at 464 [capitalization of "NOT" in original].) The court agrees and finds that the petitioners, at this point in the proceeding, need not prove this element to obtain pre-action disclosure.

Applying the fourth prong of Dendrite, the court finds that the balance in this case weighs in favor of the petitioners.

IT IS HEREBY ORDERED, that the motion of The Journal News is denied and the cross-motion of petitioners is granted as follows:

Within five business days of the date of this Order, The Journal News shall disclose to petitioners such information, if any, in its possession or control that could reasonably lead to the identification of the Anonymous Posters using the screen names "hadenough," "SAVE10543," and "aoxomoxoa," including posters' names, mailing addresses, any email addresses or other registration information that it may have for them including the IP address from which the blogs were posted, the corresponding internet service provider, other such information which will allow plaintiffs to identify the person(s) posting the blog entries.

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This decision should make anyone think twice about what they say in Bulletin Board posts. Even in "absolute free speech, anything goes" things are getting dicey for posters, at least those who attack real world people.

It's a difficult question. There has to be freedom to attack the motivations of people in the public eye, most esp politicians, but you can't have a situation where anyone can make anonymous postings directly stating that private individuals are breaking the law in various ways. Just imagine if someone had your real name, in a local newspaper blog, was repeatedly accusing you of being a child molester. Clearly you'd have an interest in stopping that sort of thing. Things are somewhat different for people in the public eye, though even there privacy wouldn't be absolute. For example, I might say "Despite what the judge says most Canadians still think Chretien was involved in the abscam thing and is thereby little more than a crook". Well, what I'm actually speaking about is the opinions of Canadians, and so that wouldn't be actionable even if Chretien had my name. Even where I say, as I have, that giving a "job" to Gilbert Parent at $250k per year as "Ambassador to the environment" was little better than going down into the vault of the Bank of Canada and gifting him a million dollars of our money, which makes him little more than a crook - that is clearly just opinion, and I'm welcome to it. In the case you've presented there are specific accusations that the people involved engaged in specific criminal activities, which is defamatory if you can't prove it. If I said "Chretien himself was at those meetings where cash was handed across the tables in Italian restaurants, and he personally took a large share and then put it in his Swiss bank accounts" that would be defamatory.

Personally, my read on this is that the people who made the accusations in this case were nuts, and most people reading it would dismiss what they said out of hand. I think the Ottingers should have simply ignored them.

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IMHO, the Internet has blown a huge hole in roughly established libel and defamation rules. The Internet also poses huge problems for jurisdictions (such as Canada) that attempt to define by State decree "free speech".

Let's be honest. The Internet means that anyone can say anything about anyone. It is easy to have a forum server in Panama or Madagascar, and then how is one to be stopped? These are not libel rules; these are Graffiti Rules.

Steyn, the Five Others and Radical Western Muslims seem to want to make a big thing of this Internet Free Speech Thing but in fact, technology has made the debate irrelevant. Steyn's histrionics are entirely misplaced.

Why? I predict that a future candidate will lose an election because of postings to this forum. I also predict that a future candidate will have to explain a parent's posting to this forum. IOW, if one is ambitious, one should care about what one posts. Old posts on forums such as this, in the future, will come back to haunt one. Cyberspace lasts forever.

I assume of course that our children, grandchildren and great-grandchildren live in a civilized democracy where what we do is not held against them. (How many died in Stalin's Russia or Pol Pot's Cambodia because some parent or grandparent did as we do here?)

Edited by August1991
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IMHO, the Internet has blown a huge hole in roughly established libel and defamation rules. The Internet also poses huge problems for jurisdictions (such as Canada) that attempt to define by State decree "free speech".

Let's be honest. The Internet means that anyone can say anything about anyone. It is easy to have a forum server in Panama or Madagascar, and then how is one to be stopped? These are not libel rules; these are Graffiti Rules.

Steyn, the Five Others and Radical Western Muslims seem to want to make a big thing of this Internet Free Speech Thing but in fact, technology has made the debate irrelevant. Steyn's histrionics are entirely misplaced.

Why? I predict that a future candidate will lose an election because of postings to this forum. I also predict that a future candidate will have to explain a parent's posting to this forum. IOW, if one is ambitious, one should care about what one posts. Old posts on forums such as this, in the future, will come back to haunt one. Cyberspace lasts forever.

I assume of course that our children, grandchildren and great-grandchildren live in a civilized democracy where what we do is not held against them. (How many died in Stalin's Russia or Pol Pot's Cambodia because some parent or grandparent did as we do here?)

The net is the territory of the coward and dishonourable...In REAL life if someone defames and slanders you - You can at least look them in the eye and give them a hard traditional English sucker shot in the jaw - and put an end to it...but nooooo - not on the net...a worm of a person can harrass and defame a good person and there is nothing you can do about it. So if you are any sort of a man with the ancient doctrine of honour..then keep your net activities to a minimum...why set yourself up?

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The net is the territory of the coward and dishonourable...In REAL life if someone defames and slanders you - You can at least look them in the eye and give them a hard traditional English sucker shot in the jaw - and put an end to it...but nooooo - not on the net...a worm of a person can harrass and defame a good person and there is nothing you can do about it. So if you are any sort of a man with the ancient doctrine of honour..then keep your net activities to a minimum...why set yourself up?
I also predict that incoherent posters such as Oleg Bach will be banned from posting grafitti on good Internet forums.

Or rather, civilized, intelligent, moderated forums will exclude incoherent posters such as Oleg Bach.

Edited by August1991
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The net is the place where you don't have to worry about an English sucker punch to the jaw. It is a great equalizer.

Yes, people can rant and rave but they still cannot slander and libel and get away with it. All one needs is to point the posters to where the truth can be found or just ignore the ravings of a lunatic. I suppose if one seeks recompense for damage that can be sought as well.

I generally try to remain respectful to all posters but am not above ridiculing their positions with sarcasm and satire when I can. I know that the majority of people believe in their heart of hearts they are doing the best they can in life.

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