Michael S. Vogel
ABSTRACT
The rise of the Internet has created the opportunity for individuals inexpensively to publish their views on various issues to a wide audience. While this new avenue for expression is usually used for legitimate ends, it is also frequently used by individuals to disseminate defamatory or otherwise actionable statements under cover of anonymity. As a result, there has been in recent years a great deal of litigation brought by victims of such anonymous statements against the individuals responsible for those statements. A common theme in these so-called "John Doe cases" is that the plaintiff seeks to learn through discovery the identity of the anonymous defendant --- without which the plaintiff is effectively precluded from serving process or asserting its rights.This category of cases has attracted enormous public attention in both general interest and legal publications, substantial litigation resources from public-interest groups such as Public Citizen and the American Civil Liberties Union, and considerable academic, journalistic, and governmental interest. When these suits first became common in the late 1990s, internet service providers routinely identified defendants in response even to non-judicial subpoenas, often without giving the defendant an opportunity to oppose the discovery; even when courts received an opposition, the discovery was almost always granted, usually with little in the way of reasoned analysis. In the past approximately two years, however, opposition has mounted on First Amendment grounds and there has been a substantial shift to the other extreme, with courts erecting walls against disclosure, often in derogation of other core rights.While John Doe cases have thus suddenly become relatively common and have attracted considerable public interest, there has to date been little analysis at the appellate level of the appropriate legal standards to be applied. The first appellate court seriously to attempt to conduct such an analysis was the New Jersey Appellate Division, which on July 11, 2001, issued its decision in Dendrite International, Inc. v. John Doe, along with a companion decision in Immunomedics, Inc. v. Jean Doe. These decisions, which are likely to provide the starting point for much future John Doe analysis, are discussed in the following section.
- {fr1} See, e.g., L. Lidsky, "Silencing John Doe: Defamation & Discourse in Cyberspace", 49 Duke L. J. 855 (2000); D. Sobel, "The Process that 'John Doe' is Due: Addressing the Legal Challenge to Internet Anonymity", 5 Va. J. L. & Tech. 3 (2000); Comment, "Cybersmear or Cyber-Slapp: Analyzing Defamation Suits Against Online John Does as Strategic Lawsuits Against Public Participation", 25 Seattle U. L. Rev. 213 (2001).Google Scholar
- {fr2} 342 N. J. Super. 134 (2001). The author acted as counsel to Dendrite in this case.Google Scholar
- {fr3} 342 N. J. Super. 160 (2001).Google Scholar
- {fr4} 342 N. J. Super. at 141.Google Scholar
- {fr5} 342 N. J. Super. at 141-42.Google Scholar
- {fr6} The Immunomedics decision rejected Jean Doe's argument that she should be allowed to disprove plaintiff's claim before discovery of her identity. The court's reasoning in this regard is difficult to reconcile with its decision in Dendrite establishing a special four-part test for discovery of the identity of anonymous internet posters. See Immunomedics, 342 N. J. Super. at 167-68 ("To allow a potential tortfeasor to disprove a plaintiff's case before the plaintiff is even provided the opportunity to learn the defendant's identity, let alone gather any discovery, has no foundation.. {Jean Doe} should not be afforded an advantageous position based on the media in which she chose to commit the breach of contract or because she committed that alleged breach anonymously.").Google Scholar
- {fr7} 342 N. J. Super. at 141.Google Scholar
- {fr8} See, e.g., Blake A. Bell, "Dealing With The 'Cybersmear,' False Internet Rumors Target Companies, Stocks," The New York Law Journal, T3 (Apr. 19, 1999); Mike Garrity, "Cybersmear Becomes the New Internet Scam," Mutual Fund Market News (Nov. 15, 1999); Written Statement of Richard H. Walker, Director of Division of Enforcement of the SEC, "Securities Fraud on the Internet" (April 5, 1999).Google Scholar
- {fr9} See, e.g., Dry Branch Kaolin Co. v. John Doe, 263 N. J. Super. 325, 330-32 (App. Div. 1993) (plaintiff files defamation suit against John Doe and, despite attorney-client privilege, the court orders John Doe's attorney to disclose the name of John Doe defendant-client); Brien v. Lomazow, 227 N. J. Super. 288, 307-08 (App. Div. 1988) (despite informant privilege, plaintiff-doctor may seek to identify unknown defendant, who previously filed false claim of misconduct, by compelling disclosure from state agency that originally received the defendant's claim).Google Scholar
- {fr10} Probably the closest courts have come to such action is in a few, mostly older, cases where courts have refused to allow discovery of journalists' anonymous sources. However, those cases (besides involving the special deference given to investigatory journalists) generally involved claims that were either found to be frivolous, e.g., Carey v. Hume, 492 F. 2d 631 (D. C. Cir. 1974); Garland v. Torre, 259 F. 2d 545 (2d Cir. 1958), or that could not survive summary judgment after otherwise full discovery, e.g., Cervantes v. Time, 464 F. 2d 986 (8th Cir. 1972) (plaintiff could not prove its case regardless of the identity of the confidential source).Google Scholar
- {fr11} See, e.g., United States v. Microsoft Corp., 56 F. 3d 1448, 1463-64 (D. C. Cir. 1995) ("We are similarly distressed by the district judge's decision to allow the Doe Companies to proceed anonymously.. Such proceedings would .. seriously implicate due process").Google Scholar
- {fr12} 525 U. S. 182 (1999).Google Scholar
- {fr13} Id. at 186-87.Google Scholar
- {fr14} See id. at 199.Google Scholar
- {fr15} See, e.g., McIntyre v. Ohio Elections Commission, 514 U. S. 334, 349-50 & n. 13 (1995) (finding unconstitutional a blanket prohibition against anonymous leaflets and noting that legitimate state interests may be advanced through narrower means, including tort claims for defamation).Google Scholar
- {fr16} Yahoo! and many other internet services have long posted disclaimers advising users of limits on their privacy online.Google Scholar
Index Terms
- Unmasking "John Doe" defendants: the case for caution in creating new legal standards
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