Authors of Online Comments May Remain Anonymous, Judge Finds

By holding that the anonymous and allegedly defamatory comments left on a Rochester daily newspaper's website are matters of opinion rather than assertions of fact, Supreme Court Justice David Michael Barry did not reach a lingering question on the applicable standard for releasing the identity of an anonymous Internet publisher. Neither the U.S. Supreme Court nor the New York appellate courts have declared a controlling standard.

John Caher, New York Law Journal, 08-30-2011
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A Rochester daily newspaper need not disclose the identities of four individuals who had posted anonymous and allegedly defamatory comments to the paper's website regarding a police chief and three officers, a judge in Monroe County has held.

However, by holding that the comments at issue are matters of opinion rather than assertions of fact, Supreme Court Justice David Michael Barry did not reach a lingering question on the applicable standard for releasing the identity of an anonymous Internet publisher. Neither the U.S. Supreme Court nor the New York appellate courts have declared a controlling standard.

In this case, Varrenti v. Gannett Co., 2011 NY Slip Op 21296, the Brockport village police chief and three officers sought to compel the Rochester Democrat & Chronicle, which is part of the Gannett chain, to reveal the names and addresses of four individuals who had commented online about two articles that had been posted to the paper's website in January 2011. The individuals had identified themselves as "Taxcut," "brockportonian," BkptStar" and "TaxpayerBWare."

Justice Barry examined the content and context of the comments, and while he found the tone "sarcastic, hyperbolic and based on rumors," held that the postings were protected expressions of opinion that are not actionable. Consequently, "Gannett is not required to unmask the identities of the four anonymous internet commentators," the court said.

But Justice Barry did not weigh in on the criteria for ordering disclosure of an anonymous poster's identity—a question that has yet to be resolved either nationally or in New York state.

Gannett had urged Justice Barry to adopt a test articulated by a New Jersey court in Dendrite International Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

Under the Dendrite guidelines, the trial court should require the plaintiff to make an effort to notify the anonymous posters that they are the target of an application for disclosure; afford the fictitiously named defendants a reasonable time to respond; require the plaintiff to identify the exact statements that allegedly constitute actionable speech; establish that the plaintiff has articulated a prima facie cause of action; and strike a balance between the well-recognized First Amendment right to speak anonymously and the right of the plaintiff to protect his reputation and propriety interests.

The plaintiffs had urged Justice Barry to adopt a different test, one established by Judge Denny Chin in Sony Music Entertainment Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), when he sat on the Southern District bench.

In Sony, Judge Chin, who has since been elevated to the U.S. Court of Appeals for the Second Circuit, applied a five-part test that considered whether a prima facie claim of actionable harm had been demonstrated; the specificity of the disclosure request; the absence of alternative means to obtain the information; the need for the information; and the defendant's expectation of privacy.

Justice Barry observed that the forum provided by the Democrat & Chronicle is clearly designed to invite "readers to comment on the articles posted" on the website and that "readers are expected to give their opinions in the comments section of the online article."

He said that posts in this matter, which were apparently calling for an investigation into the practices of the Brockport Police Department, are clearly opinion, and "opinions cannot form the basis of a defamation claim." He also noted that the Democrat & Chronicle has removed the comments from its site.

Christopher D. Thomas of Nixon Peabody in Rochester represents the defendants.

Jon P. Getz of Muldoon & Getz in Rochester argued for the plaintiffs.
John Caher can be contacted at jcaher@alm.com.