- My site allows anonymous comments. I have been asked to reveal the identity of a commenter. Do I have to reveal the name? How does the question arise?
- Shield law case or not?
- When do you have to provide details to “unmask” an anonymous commenter?
- Some examples.
My site allows anonymous comments. I have been asked to reveal the identity of a commenter. Do I have to reveal the name? How does the question arise?
If you are operating an online site that hosts content provided by others, you may be protected by a safe harbor for the distribution of third-party content. Providers and users of “interactive computer services” are protected from civil liability for any postings made by others under the Communications Decency Act (CDA) 47 U.S.C.A. § 230. The covered service providers include ISPs (like Verizon) and websites that host third-party material (like review sites or blogs that feature comments). Even sites that make some selections or exercise some editorial judgement fall within the Section 230 safe harbor.
However, the safe harbor does NOT protect an author from liability for his or her content even if the host website is protected. So, while you as a website or blog owner are not liable for what your commenters say, you are still responsible for what YOU write.
Moreover, you may be asked to assist an aggrieved person who wants to sue an anonymous commenter. This request may come in the form of a letter or a subpoena that seeks to obtain information about the commenter’s account registration or an IP address that will help lead to the commenter’s true identity.
Shield law case or not?
If you are asked to reveal information about a commenter who is a journalistic source or who participated in the journalist’s newsgathering process, then the New Jersey shield law [link to below] probably comes into play. This means that you might be protected from having to divulge any identifying information. However, if the commenter has nothing to do with the journalistic newsgathering process, then the shield law probably does not apply.
When do you have to provide details to “unmask” an anonymous commenter?
In most cases, you will not have to unmask an anonymous commenter. The standard is quite rigorous; the requesting party has to have a strong case (often defamation) and a claim that there is no other way to find the identity of the commenter.
- Plaintiff must undertake efforts to notify the anonymous commenter that s/he is the subject of a subpoena or application for an order of disclosure. These notification efforts should include posting a message of notification of the discovery request to the anonymous user on the ISP's pertinent message board or using the ISP as a conduit to contact the anonymous commenter. All previous steps taken to locate the anonymous defendant will be considered in order to determine whether the plaintiff made a good-faith effort to comply with the requirements of service of process.
- Plaintiff should establish a strong prima facie (i.e., initial) case that will be sufficient to survive summary judgment.
- Plaintiff must prove revealing the anonymous identity is necessary, the information is sought in good faith, and is unavailable by other means.
- The court balances the defendant's First Amendment right of anonymous free speech against the plaintiff’s case.
- Identify revealed. A plaintiff proved a prima facie case for breach of contract, breach of duty of loyalty, and negligently revealing confidential information because the anonymous commenter wrote that he was an employee of the plaintiff and the statement violated the confidentiality agreement and Employee Handbook provisions. Immunomedics v. Doe, 775 A.2d 773 (N.J. App. Div. 2001).
- Identity not revealed. A plaintiff failed to produce evidence of a prima facie defamation case because plaintiff did not demonstrate harm from any of the anonymously posted messages. Dendrite, 342 N.J. Super. 134 (N.J. App. Div. 2001). See also Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. Ct. 2011) (mere assertion of harm to reputation insufficient; trial court should have sought affidavit as to the fundamental necessity of disclosing Does’ identities).
Updated September 2015