Monthly Archives: July 2008

New Jersey Court Requires a Litigant to Prove Damages in Defamation Case

New Jersey Caselaw: In Suarez v., an unpublished opinion, the New Jersey Appellate Division recently found that a defamation plaintiff must prove damages even when he already proved that the comments were made with actual malice. The Court noted that there are times when a litigant does not need to prove damages in a defamation case but this case did not fall within that exception.

In the Suarez case, a statement alleged that the Ridgefield, New Jersey Mayor, a councilman and several police officers went to the author’s home at six o’clock in the morning, investigating an erroneous anonymous tip that he had an illegal apartment. The posting of this statement spurred numerous additional bloggers, many of whom expressed sympathetic comments. The Mayor of the town sued the anonymous writer for defamation, denying that he was ever involved in any such home inspection and alleging that his reputation had been harmed as a result of the statement. The writer admitted under oath that the statement was not true, confessing that the incident did not occur at his home but that it was merely a story he heard from his attorney and friend who was the prosecutor in the town.

Even though the writer made false statements, the Court did not permit the Mayor to proceed with his defamation case. As a public figure, the Mayor had a greater burden of proof. Essentially, he needed to prove that (a) the writer acted with actual malice in making the statements against the Mayor; and (b) he suffered actual damages as a result of the publication of those statements.

The law provides for added flexibility with regard to speech made about public officials. The First Amendment encourages speech by public officials and therefore requires actual malice by the speaker in order for a public figure to proceed with a defamation claim. Actual malice generally means making a statement with actual knowledge of its falsity or with reckless disregard of whether it was false. Thus, since the statements in this case were “of public concern,” the Court examined those statements more closely.

Nonetheless, the court noted that even if the court found that defendant acted with actual malice in making the statements, the plaintiff would still be required to prove that his reputation was actually damaged as a result. In the end, the court rejected the Mayor’s claims because he failed to provide sufficient information or other evidence as to how his reputation was actually damaged.

This case highlights the difficulty for a public official to win a defamation case with added scrutiny and additional elements that a public official must prove. Any person who believes that a defamatory statement has been made about them should seek the advice of counsel in order to determine whether the claim will be subject to such heightened scrutiny.


© 2008 Nissenbaum Law Group, LLC

New York Court Rejects Disclosure of Anonymous Blog Poster

New York Caselaw: The New York County Supreme Court in Greenbaum v. Google, Inc., held that an elected member of a school board was not entitled to discover the identity of an anonymous blog poster who posted derogatory comments about the board member, calling her a “bigot” and an “anti-semite.” However, the Court did not focus upon the legal issue of whether it was appropriate to order disclosure of the anonymous speaker’s information; instead, it noted that since it did not believe that the comments rose to the level of defamation, there was no need to reach the issue of whether disclosure of the poster’s identity should be revealed.

It first commented that an appellate court in New York had not yet developed a standard that would govern the disclosure of the names of anonymous bloggers. The Court indicated that an anonymous Internet speaker must be given an opportunity to be heard in court and that those parties bringing a lawsuit must identify the actual statements that they believed to be defamatory. Notably, when a court gives an anonymous poster the opportunity to be heard, it will generally take steps to ensure that the speaker’s identity remains anonymous until it renders a decision as to whether the disclosure of the identity of that poster is lawful. Otherwise, an anonymous poster might be afraid to post speech that is protected by the First Amendment for fear that a court would give any litigant his name. Courts generally strive to not chill speech in this manner.

After examining the speech at issue, the Greenbaum Court found that it did not need to further articulate a standard for disclosing the identity of an anonymous internet poster because the posted comments were not defamatory. As such, the case could be dismissed without the speaker’s identity being revealed.

This case emphasizes the need to have a legitimate defamation claim prior to filing an action alleging defamation. Obtaining a speaker’s identity can be difficult and time-consuming. The courts will not generally readily demand the disclosure of speakers’ information. Accordingly, it emphasizes the importance of reviewing the speech at issue to be sure that it is such that it is likely to result in a viable claim.


© 2008 Nissenbaum Law Group, LLC

Hearings Delayed in Online Defamation Case Involving New Jersey Theatre Group

Commentary: A Court hearing in a New Jersey online defamation case involving a community theatre group called the Marlboro Players has been delayed. The hearings were schedule to take place on June 12, 2008 in the Superior Court of New Jersey in Freehold Township.

The case stems from comments that were posted in an online theatre forum on the Internet site The complaint filed by the Marlboro Players alleges that the 11 anonymous defendants named in the suit, each listed as John Doe, used various screen names to post defamatory statements against both the organization and several named individuals. The complaint asserts that the statements were intentionally made with the purpose of demeaning and humiliating the community theatre group and its members and participants.

The Marlboro Players are seeking actual damages to be determined at trial and punitive damages in the amount of $100,000. The group alleges that the anonymous posts have damaged the reputation of the theatre company and have had a negative effect on recruiting participants and the theatre’s ability to bring in revenue.

In bringing suit against the anonymous posters, the Marlboro Players served a subpoena on the operators of the website, demanding that they produce identifying information provided by each anonymous individual at the time of signup. In response, the attorneys for the anonymous defendants filed a motion to quash the subpoena.

In the hearings which were supposed to have taken place on June 12, the judge was to issue a decision on whether or not to grant the defendants’ motion. Should the judge eventually rule in favor of the Marlboro Players, the organization will proceed with its civil lawsuit alleging defamation, and the anonymous posters will have the right to appeal the judge’s decision.

Notably, in signing up on, all users must accept a user agreement which provides in part: “You agree no to use any obscene indecent, or offensive language or to provide to or post on or through the Web site any graphics, text, photographs, images, video, audio or other material that is defamatory, abusive, bullying, harassing, racist, hateful, or violent.” Arguably, therefore, an action could be brought based on the fact that is not enforcing its own rules.

This case brings up the interesting interplay between the rights of anonymous posters against the rights of the individuals and entities being defamed. It is a well established principle of law that a person has a First Amendment right to engage in free speech anonymously. However, when an inaccurate or exceedingly offensive posting causes harm to another, the law must provide a remedy that takes into account the rights of the victim, as well.

It remains to be seen how New Jersey courts will decide this case as the courts of other states have gone in different directions. As a result of the delay in the court proceedings, the identities of the anonymous posters will remain unknown, at least for the time being. As of the date of this post, no further hearings had been scheduled in the matter.


© 2008 Nissenbaum Law Group, LLC

U.S. District Court Orders Google to Turn Over YouTube User Records in Viacom Suit

New York Caselaw: The demands on Google to release user information extend to yet another level. The United States District Court for the Southern District of New York has ordered Google to turn over to Viacom its records of which users watched which videos on YouTube, now owned by Google. The order, issued by Judge Louis Stanton, comes in the midst of Viacom’s $1 billion copyright infringement lawsuit against Google and YouTube.

The suit, initially filed by Viacom back in March 2008, alleges that Google and YouTube engaged in massive intentional copyright infringement by posting nearly 160,000 unauthorized clips of entertainment programming owned by Viacom and by failing to prevent its users from posting infringing materials to the YouTube site. Google has maintained that it is shielded from liability under the safe harbor provision of the Digital Millennium Copyright Act of 1998. The immunity set forth therein lets Internet service providers (ISPs) off the hook for infringing activities of users. But, this immunity only applies if the ISPs adhere to several requirements and promptly remove any allegedly infringing material upon notification of the alleged infringement from the copyright owner.

Although Judge Stanton’s order limits the information that must be produced, it does direct the Google to turn over as evidence a database containing the usernames and IP addresses of YouTube viewers, along with an accounting of what videos they watched and at what time. Viacom asserts that it needs the information to demonstrate video piracy patterns in order to build its infringement case against the defendants.

Viacom, along with other large networks, film production companies and even sports leagues, is undertaking immense efforts to ensure that their copyrighted productions are not being released and made viewable on YouTube. Nonetheless, the order is certainly a cause for concern among YouTube users that the personally identifiable information they provide in registering with the site will fail to remain secure. There is also an argument that order violates the Video Privacy Protection Act, a federal law passed in 1998 to prevent “wrongful disclosure of video tape rental or sale records.” However, that law remains generally untested as it applies to the Internet.

Notably, the order also provides that Google does not have to turn over its computer source code which controls the search function and Google’s Internet search tool The judge agreed that such information is Google’s trade secret, stating that “[a] plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.”

This case raises many questions that could turn copyright and Internet law on its head: (1) can an ISP be liable for infringement despite the Digital Millennium Act; (2) can personal records be released; (3) given that the records relate to videos, does that the disclosure of user information violate the Video Privacy Protection Act; and (4) can there be liability for creating software that favors infringing content? It will certainly be interesting to see how this unfolds.


© 2008 Nissenbaum Law Group, LLC

Standards for Identifying Anonymous Posters of Blogs are Currently Emerging in Many States

New Jersey Caselaw: Courts throughout the country are struggling to find a proper standard to evaluate cases where litigants seeking the identity of anonymous bloggers. The general approach being taken by most courts is to require some evidentiary showing before they permit a litigant to find out the identity of an anonymous blogger. Courts are generally seeking evidence that proves the need for information outweighs the First Amendment rights to anonymous speech.

The New Jersey Appellate Division has previously held that an Internet defamation litigant may find out the identity of an anonymous Internet poster in limited circumstances. The Court, in Dendrite International v. Doe, indicated that the determination should be made on a case by case basis, taking into account the following factors: (1) whether efforts were taken to notify the poster about the request, allowing that poster time to respond; (2) whether the claimant specified the exact contents of each allegedly defamatory statement at issue; (3) whether the claimant set forth a valid case and provided the court with enough evidence to support the claim; and (4) the court’s balance of the anonymous poster’s right to free speech against the strength of the case before it.

This is good for potential plaintiffs because it provides a way of obtaining the information. Many states have not articulated such standards. In general, Internet service providers and website hosts take the approach that they will provide the information in response to a court subpoena. Cases like Dendrite strengthen the subpoena and the enforceability of it.


© 2008 Nissenbaum Law Group, LLC

Is Commercial Speech on the Internet Protected Under the First Amendment?

Commentary: It seems like a simple question. Is commercial speech on the Internet protected under the First Amendment to the Constitution of the United States? Unfortunately, before answering it, we must ask a more complicated one: just what is “commercial speech”?

Most people would say that commercial speech involves matters relating to commerce, such as advertisements. However, often web sites and blogs mix advertisements (such as promotional information about the company that runs the site or blog) with hard information (such as newsfeeds or, as in the blog you are reading, legal commentary). In fact, one might argue that one of the appeals of the World Wide Web to advertisers is that mixing the advertisements with the useful information or other content attracts potential buyers who spend time looking at the website and thereafter, might want to purchase the advertised products or services. Put another way, it is far more likely that someone will view an advertisement that is bundled with compelling nonadvertising content.

The United States Supreme Court has yet to completely grapple with this issue of mixed use Internet speech. However, it has set forth the concept that the government generally does not violate the First Amendment when it regulates commercial speech in the form of advertising. Bigelow v. Virginia, 420 U.S. 809 (1975). Also, the Supreme Court has made it clear that there is an enhanced protection for noncommercial speech that is mixed with commercial speech (such as advertising). Bolger v. Youngs Drug Corp., 463 U.S. 60 (1983). Hence, the key issue is the extent to which the First Amendment protections that are afforded to citizens of the United States generally will also apply to speech meant to further commercial interests.

Unfortunately, the unique aspects of speech involving web sites or blogs has not been squarely addressed by the Supreme Court. There is reason to believe that commercial speech on the Internet might be handled differently by the Court than other commercial speech given such unique factors as: (a) the viral nature of Internet speech resulting in the fact that the poster does not always control where the information will be posted; (b) the fact that there are special statutory immunities that apply for web sites that serve as forums for speech (so long as they do not editorialize or otherwise inject themselves into the substance of the postings); and (c) the practical difficulty of separating what is and is not Internet commercial and non-commercial speech.

While other lower federal courts have addressed these issues, only time will tell if the Supreme Court is willing to carve out such an exception.


© 2008 Nissenbaum Law Group, LLC

State v. Reid: New Jersey Protects the Confidentiality of Internet Subscriber Information

New Jersey Caselaw: Through State v. Reid, 194 N.J. 386 (2008), the New Jersey Supreme Court recently issued a landmark holding that Internet subscriber information is protected from disclosure because it is considered confidential. The confidentiality can be overcome by a demonstration of relevancy, however, the person who is the subject of the request must be given a reasonable opportunity to contest the turn over at a judicial hearing.

In Reid, the State prosecuted a case where a company alleged that a former employee was stealing its proprietary information using a confidential Internet password. The underlying act was traced to a Comcast IP address. IP addresses are generally anonymous, and the identity of the person or persons who act through a particular IP address is not generally evident. Comcast refused to provide the user information relating to that IP address when initially requested. However, when a subpoena was issued to it, Comcast revealed the defendant’s Internet subscriber information. Notably, Comcast’s response to the subpoena was without notice to the defendant and without a judicial hearing. The defendant then sought to suppress this information as evidence on the basis that Comcast had revealed the user information in a manner that violated her constitutional right to privacy.

The New Jersey Supreme Court determined that while it might not have violated her privacy right under the United States Constitution, the New Jersey Constitution provides enhanced privacy rights that were violated. Specifically, Article I, Paragraph 7 states that people who live in New Jersey have a right of privacy; while the federal constitution does not explicitly guaranty such a privacy right. In fact, the United States Supreme Court has held that the Fourth Amendment to the Federal Constitution is not violated by a subpoena seeking such information.

However, since New Jersey’s Constitution provides this an enhanced right to privacy, its State and Municipal Courts are required to provide notice to the subject of the subpoena and an opportunity to contest the production. In such a hearing, the relevancy of the material sought is the key to determining whether production is warranted. Importantly, this protection extends to more than just Internet service provider records, but also long-distance phone billing records and bank records, as well. In reaching this holding, the Court noted the sensitive and personal information that can be communicated through these methods of communication that are now ingrained into our daily lives.


Can Schools Punish Internet Bullies?

Commentary: School bureaucracies have one overriding goal: to exert control over student life sufficient to create an atmosphere conducive to learning. However, when that control is exerted outside school premises, students may legitimately question whether it is wise or even legal for the school to have such authority.

Internet bullying is a perfect case in point. There are many examples of the ways in which it can invade the process of learning: the teacher in Florida who was the subject of a sexually demeaning post by her student (resulting in a $1000 judgment); or the principal in Pennsylvania who sued over a MySpace posting that posted derogatory comments about him (suspension of the student was upheld by the trial court and is now on appeal).

However, there have also been cases in which a student has sued the school district for impairing his First Amendment rights. This has involved everything from a student who was forced to leave the school because he posted rap songs that the school district found objectionable to a young man who was temporarily forced to leave a school because he posted negative comments about the school administration. Each of these instances resulted in an award or settlement involving money damages to the student.

The dividing line seems to be whether a credible case can be made that the student’s Internet posting is linked to disrupting the school’s efforts to create an atmosphere conducive to learning. In other words, although the behavior occurs outside of school, could its impact boomerang back to the scholastic environment? Without that element, it appears that the courts will generally favor the student’s First Amendment rights to Internet speech. In such instance, the courts appear reticent to enforce the school’s right to regulate the extracurricular behavior of its students.