Legal Protections for Anonymous Speech in New Jersey

Note: This page covers information specific to New Jersey. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

New Jersey courts apply a protective test before permitting disclosure of an anonymous Internet speaker's identity. Among other things, the courts require a plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, and assuming the plaintiff can meet this burden, the courts apply a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

Three New Jersey cases applying this standard are discussed below:

Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001)

Dendrite International, a company that developed and serviced software for the pharmaceutical industry, brought a "John Doe" lawsuit in New Jersey state court against fourteen unnamed defendants, complaining about critical messages that they posted on Yahoo! message boards under pseudonyms. Dendrite claimed the messages were defamatory and revealed company trade secrets and sought permission from the court to take discovery from Yahoo regarding the identity of certain of the anonymous posters. The trial court allowed Dendrite to conduct limited discovery to find out the identities of John Does 1 and 2, who were current or former employees of the company, but rejected its request for an order compelling Yahoo to identify John Doe 3.

Dendrite appealed, and the New Jersey appellate court affirmed the lower court's ruling. In its opinion, the court set out guidelines for lower courts to follow when faced with a request for an order compelling an ISP to reveal the identity of an anonymous Internet poster. The court developed a five-part test: (1) the plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond; (2) the plaintiff must identify the exact statements made by the poster; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must bring forth sufficient evidence for each element of its claim; and (5) the court must balance the strength of the speaker's claim to First Amendment protection against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

Applying the standard to the facts of the case, the appellate court held that Dendrite had failed to produce sufficient evidence for each element of its defamation claim. Specifically, the court held that Dendrite had not produced sufficient evidence of harm resulting from John Doe 3's statements.

Immunomedics v. Doe, 775 A.2d 773 (N.J. App. Div. 2001)

An unknown internet user posted information on a Yahoo! message board about the company Immunomedics under the pseudonym moonshine_fr. Immunomedics claimed that moonshine_fr's postings suggested that she was a company employee, and therefore her postings breached the confidentiality agreement she had signed with the company. Immunomedics sued her in a "Jane Doe" suit and subpoenaed Yahoo! for information regarding moonshine_fr's identity. When informed of the subpoena, moonshine_fr filed a motion to quash it. The trial court denied the motion, and she appealed.

The appellate court applied the test created in Dendrite. The court determined that Immunomedics had produced sufficient evidence to support its claim that moonshine_fr was an employee and was thus subject to the company's confidentiality agreement. Without extensive analysis, the court also concluded that Immunomedics's need to identify moonshine_fr in order to enforce its confidentiality agreement outweighed her right to speak anonymously. Therefore, it affirmed the trial court's ruling allowing Immunomedics to subpoena Yahoo! for her identifying information.

A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010)

In A.Z. v. Doe, a mid-level appeals court in New Jersey affirmed an order quashing a subpoena seeking subscriber information for a Gmail account. The plaintiff was a member of her high school’s “Cool Kids & Heroes” program, comprised of students of high academic achievement who pledged to maintain standards of “exemplary personal conduct.” An anonymous individual set up a Gmail account and sent an email to the faculty advisor for the Cool Kids & Heroes program stating that seven students, including the plaintiff, were “breaking their contracts, and breaking the law.” The email attached several photographs taken off Facebook showing students drinking and smoking pot. Only one of the photographs included the plaintiff, and it showed her standing at a ping pong table about to throw a ping pong ball, but it did not show her drinking or smoking.
The plaintiff filed a John Doe lawsuit against the sender of the email and subpoenaed Google, and the Doe defendant filed a motion to quash. The trial court granted the motion, reasoning that the plaintiff failed to show that the strength of her prima facie case and the necessity for disclosure outweighed Doe’s First Amendment right to anonymous speech.

On appeal, the court adhered to the Dendrite standard and affirmed the trial court, though on different grounds. The appeals court ruled that the plaintiff was not entitled to unmask the defendant because she could not make out a prima facie case of defamation. Specifically, the court found that the plaintiff presented no evidence that the statement she was “breaking [her] contract[], and breaking the law” was false. The court noted that the plaintiff “never provided a sworn statement that she was not consuming alcohol while underage, that the photograph was a forgery, that the photograph had been altered, or that she was not the person who was depicted in the photograph.”  2010 WL 816647, at *5. The court also found compelling additional photographs taken off Facebook that Doe submitted in support of the motion to quash.  These photographs showed plaintiff holding and drinking alcoholic beverages along with the other students.  Id. at *6.  The court concluded: “We are satisfied that regardless of whether the balancing test embodied in Dendrite’s fourth prong is applied or not, no plaintiff is entitled to an order unmasking an anonymous author when the statements in question cannot support a cause of action for defamation.” Id. at *7.

Note: Another New Jersey court rejected an attempt to obtain information about the identity of anonymous Internet speakers in Donato v. Moldow. The court applied the Dendrite standard.


Subject Area: