Online News Sources Have Standing to Protect Free Speech Rights for Anonymous Users, According to New Jersey Appellate Division

Online newspapers, internet service providers, and website hosts have standing to assert the constitutional rights of their users, according to the New Jersey Appellate Division’s recent unpublished decision in Trawinski v. Doe.

In Trawinski, the Appellate Division affirmed the denial of a plaintiff’s request for a subpoena requiring NJ.com to disclose the identity of an anonymous commenter. Underlying plaintiff’s request were allegedly defamatory remarks made by an anonymous poster using the screen name “EPLifer2” concerning plaintiff and her husband, a borough council member of Elmwood Park.

A threshold question for the court was whether NJ.com had standing to oppose the subpoena. The panel noted that New Jersey has not yet addressed the issue in a published decision. Accordingly, the Court looked to other jurisdictions for guidance and found that an online newspaper and internet service provider have standing to assert the rights of their readers and subscribers as third parties. In reaching this conclusion, the Appellate Division considered the difficulty anonymous commenters may face to assert their own First Amendment rights without sacrificing their anonymity, the fact that the newspaper itself has the requisite injury-in-fact to litigate, and the fact that the newspaper would zealously argue on behalf of the poster.

Regarding the merits of the dispute, the Appellate Division applied the analysis set forth in Dendrite International, Inc. v. Doe, which requires a plaintiff to satisfy a four-prong test to determine whether the disclosure of an anonymous poster is necessary. Under the Dendrite analysis, the panel upheld the trial court’s conclusion that the plaintiff failed to allege a defamatory statement in the posts submitted by EPLifer2. The Court noted that the poster’s comment “represented criticism of a local politician and his spouse for their involvement in political matters” which, according to the Court, “at best, are ‘rhetorical hyperbole’ on a matter of public concern.”

With the Court’s decision in Trawinski, anonymous posters should feel more protected to assert their rights under the First Amendment, as there is now authority for the newspapers and other providers to protect their identities in court.

Charlotte Howells is an Associate in the Gibbons Business & Commercial Litigation Department.
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