Legal Protections for Anonymous Speech in New York

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

New York law is unclear about exactly what test a court should apply in deciding whether to permit disclosure of an anonymous Internet speaker's identity. New York courts have applied a variety of different tests, though they all essentially require the plaintiff to make a substantial legal and factual showing before obtaining the identity of an anonymous Internet speaker. A number of the key cases are discussed below.

Greenbaum v. Google, 845 N.Y.S. 2d 695 (N.Y. Sup. Ct. 2007)

The blog "Orthomom" is operated anonymously. Comments critical of Pamela Greenbaum, a local school board member, appeared on the blog in January 2007. Greenbaum objected to both primary blog content and a user comment. In February 2007, Greenbaum filed a motion for "pre-commencement discovery" in New York state court, seeking to compel Google to disclose identifying information about the operator of the blog and a user. (Google owns Blogger, which is the blog hosting service for the Orthomom blog.) After being notified of Greenbaum's discovery request, Orthomom intervened and objected to disclosure of her identity, invoking First Amendment protection for anonymous speech.

In October 2007, the court denied Greenbaum's request for pre-commencement discovery and dismissed the lawsuit. In its order, the court recognized that the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and that courts must balance this right with the plaintiff's right to pursue a valid cause of action for defamation. The court expressed a willingness to follow the standard set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), in which a New Jersey appellate court held that a plaintiff must produce evidence on each element of its claim and that the court must independently balance the need for disclosure against the First Amendment values at stake. The Greenbaum court indicated that it was not necessary to decide the precise standard to be applied, however, because "the statements on which [Greenbaum] seeks to base her defamation claim [were] plainly inactionable as a matter of law."

Thus, Greenbaum provides some support for applying the Dendrite test in New York, but it is not conclusive.

Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009)

In Cohen, a New York state trial court granted model Liskula Cohen pre-suit discovery from Google to reveal the identity of the anonymous publisher of the “Skanks in NYC” blog. Cohen alleged that the blog author defamed her by calling her a “skank” and a “ho” and posting photographs of her in provocative positions with sexually suggestive captions, all creating the false impression that she is sexually promiscuous.

The court analyzed the discovery request under New York CPLR § 3102(c), which provides for discovery “to aid in bringing an action.” The court ruled that, under CPLR § 3102(c), a party seeking pre-action discovery must make a prima facie showing of a meritorious cause of action before obtaining the identity of an anonymous defendant. See 887 N.Y.S.2d at 426-27 & n.5.  While acknowledging the First Amendment issues at stake and citing Dendrite, the court opined that New York law’s requirement of a prima facie showing “appear[s] to address the constitutional concerns raised in this context.” Id. at 427 n.5.

The court held that Cohen adequately made this prima facie showing of defamation, finding that the “skank” and “ho” statements, along with the sexually suggestive photographs and captions, conveyed a factual assertion that Cohen was sexually promiscuous, rather than an expression of protected opinion. Id. at 428-29. Somewhat confusingly, in rejecting the blogger’s argument that her statements should be viewed as opinion because “as a matter of law . . . Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting,” the court cited an old case from Virginia,  In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Va. Cir. Ct.), rev’d on other grounds, 542 S.E.2d 377 (Va. 2001), which applied a lenient “good faith” standard to a discovery request seeking the identity of an anonymous commenter. This reference is best understood as dicta, however, because the court invoked the case in dealing with a peripheral point. Furthermore, the AOL test is inconsistent with CPLR § 3102’s requirement of a “prima facie showing of a meritorious cause of action,” which the court invoked to sidestep First Amendment analysis. Id. at 427 n.5.

Ottinger v. The Journal News, No. 08-03892 (N.Y. Sup. Ct. July 1, 2008)

In Ottinger v. The Journal News, former House Representative Richard Ottinger and his wife, June Ottinger, sought the identity of three pseudonymous posters to, an online news site operated by The Journal News that focuses on New York's Lower Hudson Valley.  A New York state trial court denied the newspaper's motion to quash and ruled that it had to turn over the subpoeanaed information. 

Ottinger and his wife subpoenaed The Journal News asking for identifying information for posters to the site's Mamaroneck community forum going by the psuedonyms "SAVE10543," "hadenough," and "aoxomoxoa." The posters allegedly made statements accusing the Ottingers of unsavory conduct in the course of a neighborhood dispute over their construction of a house in the Village of Mamaroneck, NY. 

The court applied the standard for protecting the First Amendment right to anonymous speech set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and found that the Ottingers had satisfied the standard. 

A second judge later dismissed the Ottingers' subsequent defamation lawsuit against Stuart Tiekert, the commenter unmasked in the previous proceeding. In its ruling, the court invoked New York's anti-SLAPP law and ruled that the Ottingers "failed to demonstrate that their action has a substantial basis in fact or law." 

Zherka v. Bogdanos, 08 Civ. 2062 (S.D.N.Y. Feb. 24, 2009)

In Zherka, a federal district court in the Southern District of New York granted The Journal News’ motion to quash subpoenas seeking the identities of three pseudonymous posters to a forum on the website. In ruling on the motion to quash, the court applied a multi-part test derived from Dendrite, Sony Music Entertainment v. Does, 326 F.Supp.2d 556 (S.D.N.Y. 2004), and Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008), which has the following elements: (1) the plaintiff must make a reasonable attempt to provide notice to the anonymous poster; (2) the plaintiff has to provide the court with the full statements which are at issue; (3) the plaintiff must make a concrete showing of a prima facie case; (4) the court should consider whether the information is available through alternate means; and (5) if all the other elements are satisfied, the court must balance the First Amendment interests of the anonymous posters against the need for disclosure in order to allow the plaintiff to proceed. Zherka, Tr. at 28-31.

Interestingly, the court indicated that the First Amendment interests of the posters under prong five would be diminished if the website privacy policy warned that identifying information would be disclosed in response to court order or other legal process.  Id. at 28.  The court did not provide detailed reasoning on this point.

In applying this standard, the court gave considerable weight to prong four, finding that the plaintiff had failed to pursue alternative means of identifying the posters and suggesting that the named defendants likely knew the posters’ identities. Id. at 30-31. The court gave the plaintiff permission to re-serve the subpoena after discovery between the named parties and stated that “it should be done with appropriate notice as outlined above, and with concurrent filing to me showing the full statements, laying out the prima facie case, and describing why there are no effective alternative means to get the information.” Id. at 32. 

Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004)

A number of anonymous internet users used a peer-to-peer network to exchange copyrighted music. Sony and other recording companies who owned the copyrights sued the anonymous internet users for copyright infringement and subpoenaed their ISP, Cablevision, for information that would reveal the defendants' identities. Cablevision notified the anonymous defendants, and several of them filed motions to quash.

In deciding on the motion to quash, the court held that peer-to-peer file sharing "qualifies as speech, but only to a degree." Therefore, the court determined that anonymous file-sharing activity should receive some First Amendment protection, but only to a limited degree. The court identified five factors for determining whether to allow disclosure of an anonymous Internet user's identity: (1) whether there is "a concrete showing of a prima facie claim of actionable harm"; (2) the specificity of the discovery request; (3) the absence of alternative means to gain the information; (4) whether the information subpoenaed is central to the plaintiff's claim; and (5) the anonymous party's expectation of privacy. The court found all five factors here to weigh towards the plaintiffs, and thus denied the defendants' motions to quash.

It is not entirely clear whether "a concrete showing of a prima facie claim of actionable harm" requires a plaintiff to put forth evidence, or whether a plaintiff can satisfy it with allegations alone. At times the court seems to suggest that allegations are enough, such as in the paragraph at page 9 of the linked opinion that begins, "Plaintiffs have alleged ownership of the copyrights ...." However, in the next paragraph, the court mentions the plaintiff's evidence, implying an evidentiary component to the "prima facie" inquiry. The "concrete showing" language itself also suggests an evidentiary requirement.

Later courts have interpreted Sony Music in different ways. The Greenbaum court described Sony Music as a "lesser standard" (as compared to Dendrite), and the general trend is for courts to consider Sony Music's standard to be plaintiff-friendly, with the "prima facie" requirement satisfied with little or no evidence. On the other hand, one court has characterized Sony Music as applying a test comparable to the summary judgment standard from Doe v. Cahill, 884 A.2d 451 (Del. 2005). See Best Western International v. Doe, 2006 WL 2091695 (D. Ariz. 2006).

Note that, although Sony Music is a copyright infringement case, courts have applied its standard in other types of cases. For example, a federal court in New York applied the Sony Music test in General Board of Global Ministries of the United Methodist Church v. Cablevision, 2004 WL 2904405 (E.D.N.Y. 2006), which involved anonymous "hacking" of a computer system. A New York state court applied it to a defamation case in Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005), which is discussed below.

Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005)

A staff member of the Public Relations Society of America (PRSA) sent an anonymous email to PRSA's board of directors that was highly critical of the board and its executive director, Catherine Bolton. Bolton and PRSA brought a special proceeding in New York state court seeking "pre-action" discovery from Road Runner, the anonymous emailer's ISP. The anonymous defendant moved to intervene in the action in and to dismiss the petition for discovery.

In deciding whether to allow PRSA and Bolton to compel disclosure of the emailer's identity from Road Runner, the court adopted the Sony Music standard (discussed above). The court found all factors weighed in favor of granting disclosure, noting in particular that the defendant had no legitimate expectation of privacy in this situation. The court applied Sony Music's "prima facie" standard as being roughly equivalent to a "motion to dismiss" standard, which looks at whether the allegations in the complaint are sufficient, without requiring any evidence.

This case is significant because it applied a standard developed in the copyright infringement context to a defamation case.


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