Local Internet Service Providers and online community forums are likely to be caught between their commenters - who may wish to post critical comments anonymously - and people who believe defamatory remarks made about them and their businesses have harmed their reputations.
Earlier this year, the town of Secaucus sent a legal request to NJ.com, a newspaper website that allows anonymous posts by readers, to get the identities of people using the following screen names: 2Advil, AllEyzOnYou, and Truth4Tel. The town claimed that the posters made potentially damaging attacks against a town worker.
In politically heated Hudson County, people often pepper town websites with angry posts against local officials and activists. While some of those posts merely include opinions, others purport to include facts - yet there is no requirement that they provide any backup for the allegations.
The issue is part of a larger, and relatively new, debate over whether people posting on internet websites can be sued for slander, and whether the owners of the sites are likewise liable for what is posted on them.
Secaucus wants to subpoena site Louis Lamatina, an attorney representing Secaucus, has asked a Hudson County Superior Court Judge to issue a subpoena for NJ.com, a site run by a group of New Jersey newspapers. At the same time, the town of Secaucus has sent their own legal notice warning NJ.com about the pending legal action.
The action is presumably a prerequisite to sue the posters for defamation or slander. It is unlikely the site could be held responsible since legislation in New Jersey to hold site managers responsible was stalled in committee in 2006.
People who post comments to online web sites can, and sometimes do, use their real names, but it isn't uncommon for posters and bloggers to use fictitious names. Whoever posted comments under the guise of 2Advil, AllEyzOnYou, and Truth4Tel could be three people, one person, or a group of people working in tandem. NJ.com must respond to Lamatina's motion by Sept. 26. Attorneys for the site will likely try to have the subpoena suppressed.
When reached for comment last week, NJ.com Editor David Blomquist declined to answer any questions. He also refused to say whether the site had any legal representation for the case.
2007 argument at root of lawsuit The comments in question, which were posted in March of 2008, have since been removed from NJ.com. But they resulted from a scuffle that erupted after a Town Council meeting a year earlier.
After that February, 2007 meeting had ended, John Schwartz, a recreation facilities supervisor - and a political ally of Mayor Dennis Elwell - got into a verbal altercation with Jim Clancy. Clancy is a middle school teacher who's politically aligned with Elwell foe Michael Gonnelli, a Secaucus Town Councilman.
According to a police report of the incident, Schwartz alleged to police that Clancy made "terroristic threats" against him. Schwartz also said that Clancy had told him that he'd supported the wrong politician. In addition, Schwartz alleged that Clancy made threats against Anthony Iacono, who was Secaucus' controversial Town Administrator at the time.
Following newspaper coverage of the incident, there were numerous comments on the Secaucus bulletin board on nj.com. The comments seemed to come from people on both sides of the argument: some appearing to come from supporters of Mayor Elwell, and some apparently from supporters of Councilman Gonnelli.
Renewed coverage of the incident in February of 2008 led to another round of comments after the Town Council approved $1,471 in legal fees incurred by Schwartz related to the incident. The town paid to defend the police matter.
Elwell and his supporters on the council - Councilmen John Reilly, John Shinnick, and Richard Kane - voted to approve payment of the legal fees. However, Councilmen John Bueckner, Gary Jeffas, and Gonnelli questioned why Secaucus taxpayers were being asked to foot the bill for Schwartz, and voted against payment of the legal fees.
The controversy surrounding the payment of these legal fees, and the comments made on NJ.com about the controversy, are what led to the allegedly libelous comments now at the heart of the town's lawsuit.
Similar case in Manalapan A similar case is currently winding its way through a Monmouth County Superior Court.
In that case, the town of Manalapan was unsuccessful in its attempts to obtain a court subpoena to force NJ.com to reveal the identity of a poster who went by the name daTruthSquad, after allegedly libelous comments were made on the site about the town's former mayor, George Spodak.
In the initial ruling, Superior Court Judge Terence Flynn cited the importance of protecting First Amendment rights and concluded that, "Anyone...has the right to make their feelings clear. And they have the right not to be intimidated by the issuance of discovery requests in order shut them down," according to court documents.
Since Manalapan Township was unsuccessful in its efforts to unveil daTruthSquad, Spodak and his attorney, Lawrence Kleiner, are trying a different strategy: Spodak plans to file a motion as an individual asking that NJ.com be forced to reveal the poster's identity. Spodak has noted that he has been out of office for some time.
Kleiner believes this change in strategy will have a better outcome, as the township is no longer involved and the legal arguments are now clearer.
In addition to daTruthSquad, Kleiner is also asking for a subpoena to get the names of three other anonymous posters: "Fontina," "Bribed Spodak," and "My Green Meat," who allegedly also made libelous comments about Spodak.
Kleiner alleges in court documents that "The aforementioned individual/individuals/entities posted statements which included...accusations about Spodak being a pedophile; having beaten his wife; being a drunk and an alcoholic; selling tainted meat when in business; being investigated by the FBI and USDA; threatening to kill his former wife; being dishonest; being a crook and a bum."
"Listen, they have the right to criticize him, but they can't libel him," Kleiner said last week. "They can't say that he's a pedophile. It doesn't matter who you are, whether you're a private citizen or a public official. Certainly there is a heightened standard for public officials, and there are things that can be said about public officials that you often can't make about private citizens. But those comments would meet any threshold for libel."
However, not everyone agrees.
"Well, actually, the laws regarding Internet privacy rights in this area are pretty well settled," said Matt Zimmerman, senior staff attorney with the Electronic Frontier Foundation, a San Francisco-based Internet privacy advocacy nonprofit that's representing daTruthSquad. "The court of Appeals has ruled that if a litigant is trying to find the identity of someone posting anonymously to a message board, you can't just go to court and use a subpoena to find this out, because the First Amendment protects anonymous speech. And the court put forth a series of pretty simple things a litigant would have to do before obtaining that information. And the court said you have to identify the specific statements that are supposedly defamatory, and you must prove that you were harmed by those statements."
In other words, a plaintiff must prove in a court of law that he has been libeled and damaged, before he or she can find out who has libeled him or her.
"If you can't meet those two standards," Zimmerman added, "then the court won't issue a subpoena. Often, litigants who are angered by things that are said about them online can't meet one or both of these standards."
First Amendment v. libel/slander While slander and libel laws regarding speech and printed material are quite old, courts and legislators around the country are still determining how these laws should apply to internet content, and who is responsible when something libelous appears.
In January 2006, the New Jersey Assemblyman Peter Biondi (D-16th Dist.) introduced legislation that would hold Internet Service Providers and the operators of computer services liable to people harmed by defamatory comments posted on their sites. However, this legislation has been stalled in committee since it was introduced and hasn't passed, Biondi said last week.
Meanwhile, those protecting internet privacy rights have made headway in New Jersey courts.
In April of this year, the state Supreme Court ruled in New Jersey v. Shirley Reid that the government must obtain a grand jury subpoena before it can get private information about online users from Internet Service Providers.
In that case, Tim Wilson, the owner of a company called Jersey Diesel, believed that a disgruntled employee with whom he argued tampered with the company's official web site. Through his own legwork, Wilson figured out that the user had an account with Comcast. After Comcast refused to turn over the user's subscriber information without a subpoena, Wilson turned to the Lower Township Police Department for help.
The Police Department launched its own investigation and found that it was the person Wilson suspected.
In that case, the police had obtained a subpoena from a lower court. However, the state Supreme Court later ruled that a grand jury subpoena must be used to obtain someone's identity before that person can be sued for libel.
In another ruling, New Jersey's Appellate Court concluded that a Morristown-based company, Dendrite International, has no right to get the real name of a frequent online critic because it couldn't provide evidence that it had been harmed by the poster's comments, according to published reports regarding the case.
Although Internet privacy laws vary from state to state, Zimmerman said he believes the New Jersey rulings are consistent with a number of recent rulings around the country.
He said he believes most state supreme courts will err on the side of protecting online privacy rights in the foreseeable future.
However, those who feel they have been harmed by internet comments can still attempt to sue in any court of law. Whether they will be successful at learning the posters' identities, and whether site owners themselves will be responsible for the content, is something that will continue to be debated.
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