Category Archives: New Jersey Caselaw

Does New Jersey Recognize the Presumed Damages Doctrine in Internet Defamation Claims?

In W.J.A. v. D.A., No. A-77-10 (May 16, 2012), the New Jersey Supreme Court addressed the question of whether the doctrine of presumed damages applies over the Internet.

That case surrounds Wayne Anderson (“Wayne”), a New Jersey man who was cleared of sexual abuse charges against his nephew, David Adams (“David”) (both fictitious names created by the Court).  Wayne was awarded $50,000.00 for defamation in the original suit, and nine years later David created a website that repeated the abuse claims with additional charges.  The site included Wayne’s name and address.

The creation of the website initiated the current case. However, because Wayne could only offer anguish and emotional injury as damages, the Law Division judge found those damages subjective and therefore insufficient to sustain a defamation claim. David was granted summary judgment.  However, the Appellate Division reversed, holding that Wayne could recover damages in a defamation suit without proving actual harm.  This is known as the “Presumed Damages Doctrine,” whereby a claimant may recover nominal damages expected when his reputation has been injured.  Reputational damage is often hard to prove, so under certain circumstances, it may be presumed, but the damages are generally nominal.

In that case, the Supreme Court held that the presumed damages doctrine would be recognized.  The judge noted that the doctrine acts as a procedural device to help the plaintiff’s claim survive dismissal.  Addressing the fact that the damages would be nominal, the Supreme Court noted that vindication is an important piece of any defamation claim and the doctrine acts as a tool by which the plaintiff is provided dignitary recourse.

Because the damages are presumed, it is hard for a jury to devise a uniform method of valuation.  That is why a plaintiff can only obtain nominal damages at trial, thereby precluding compensatory damages absent proof of actual harm.  Of course, the Plaintiff is free to seek to prove actual damages, which one would hope would be greater.  However, that is often not possible.

This case is important because it illustrates that New Jersey will recognize the doctrine of presumed damages, but recovery under the doctrine is limited.  The doctrine is a good tool for a plaintiff to use to defeat dismissal and obtain nominal damages when he cannot show actual harm.  This is generally the scenario in Internet defamation cases, in which the reputational harm that can be caused is extremely hard to measure.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Can an employer legally check an employee’s password-protected social networking site?

In a recent decision, a Federal District Court for the District of  New Jersey upheld a jury’s verdict that a chain restaurant violated the Federal Stored Communications Act and a similar New Jersey law by knowingly and intentionally accessing its employees’ private chat group on MySpace.com.

The managers of Houston’s Restaurant learned of the chat group from employee Karen St. Jean and gained access to it using her password.  As a result, several employees lost their jobs based upon comments made about Houston’s on the site. 

Those employees sued Houston’s and a jury trial was held.  The jury decided the managers’ access to the site was unauthorized after hearing testimony from St. Jean that she felt pressured to provide her password to her managers.  In addition, the jury decided that the managers knew St. Jean felt pressured to provide her password.  As a result, the jury rejected Houston’s argument that its managers genuinely believed they had authority to access the chat group.  The fact that the managers accessed the site on five separate occasions was sufficient to establish that they knowingly and intentionally accessed the site without authorization.  In fact, the jury determined that the managers’ actions were so malicious as to justify an award of punitive damages in addition to compensatory damages.  Pietrylo v. Hillstone Restaurant Group, No. 06-5754, 2009 WL 3128420 (D.N.J. 2009).

This case illustrates the importance of creating a clear policy regarding an employee’s use of social networking sites, especially when comments about that person’s employer may be contained on the site.

Does a person have to show that his reputation was harmed to bring a lawsuit for per se online libel or slander?

The NJ Supreme Court is currently considering an appeal that may determine once and for all whether a person can proceed with an online per se libel suit even though there is no evidence that his reputation has been actually harmed.

In W.J.A. v. D.A., 416 N.J. Super. 380 (App. Div. 2010), the nephew created a website in which he posted allegations that his uncle had molested him years ago. The uncle then sued his nephew for defamation.

Defamation is when the defendant communicates to another person a false statement about the plaintiff that harms the plaintiff’s reputation in the eyes of the community or causes others to avoid him. There are two types of defamation, libel which is when the false statement is written or printed and slander which is when the false statement is spoken.

New Jersey law provides that someone suing for defamation must show actual damages. However, there is an exception to that requirement in which damages will be presumed. It is called “per se” slander or libel. The usual examples are set out in the standard New Jersey jury charges:

  • The statement charges someone with the commission of a crime. 
  • The statement accuses someone of having an offensive or loathsome disease that would tend to deprive the person of companionship. 
  • The statement concerns matters that are incompatible with business, trade, profession or office.
  • The statement charges serious sexual misconduct.

In this case, the Appellate Division of the Superior Court of New Jersey determined that per se defamation is not limited to the spoken word (slander), but also applies to the written word (libel). The Court reasoned that:

“[F]or purposes of summary judgment, no one disputed that the defamatory statements attributed to defendant were defamatory. Thus, dismissal of the action at that stage-merely because plaintiff presented no proof of actual damage – provides defendant with a license to defame. If there has been a wrong, there should be a remedy, and the time-honored approach of allowing such a case to be decided by a jury, which may then assess a proper amount of damages based upon their experience and common sense, does not offend us.”

W.J.A. v. D.A., 416 N.J. Super. At 606-607 (App. Div. 2010)

The opinion is also notable because it clarifies that a defamatory Internet posting is libel, not slander.

This case is now on appeal to the NJ Supreme Court, which should issue its ruling sometime this term.

Download W.J.A. v D.A., 416 N.J. Super. 380 (App. Div. 2010)

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

Do bloggers have to disclose their sources?

The New Jersey Supreme Court has accepted a case in which it will decide whether a person posting comments on the Internet has to disclose the source of the posted information.
In Too Much Media, LLC v. Hale, 413 N.J. Super. 135, (App. Div. 2010), certif. granted, Too Much Media, LLC v. Hale, 203 N.J. 433 (2010), a woman sought protection under the NJ Shield Law, N.J.S.A. 2A:84A-2, which protects journalist from disclosing their confidential sources. The woman claims that, like a paid journalist, she was investigating a newsworthy matter and reporting her findings via a posting on an Internet bulletin board. The Appellate Division found that she was not investigating and reporting news and therefore, was not protected by the Shield Law. It stated in part,

“Simply put, new media should not be confused with news media. There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting. The transmission or dissemination of a “message” through the new medium of the Internet, or the display of one’s content or comment thereon, does not necessarily entitle the author or writer to the same protection as a “newsperson.” Although any attempt at defining “news” would ultimately prove illusory, some delimiting standards must pertain lest anyone with a webpage or who posts materials on the Internet would qualify.”

Too Much Media, LLC v. Hale, 413 N.J. Super. at 154-5 (App. Div. 2010)

This matter is now being reviewed by the NJ Supreme Court, which should issue its ruling sometime this term.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

Internet Advertisement on a Passive Website is Not Generally a Basis for Personal Jurisdiction in a Lawsuit

On August 16, 2010, the Federal District Court of the District of New Jersey upheld the prevailing view of personal jurisdiction as it relates to internet advertisements.  The Court in Morilla v. Laser Spine Institute, LLC, 2010 WL 3258312 (D.N.J.) stated that “[a] website that has only information and a generic contact information input form falls at the passive end of the Zippo scale.  Id. at 5.  The Court held defendant’s website to be passive and declined to exercise jurisdiction over defendant.  In the analysis of the operation of the defendant’s website, The Court stated:

“In the past fifteen years, the increasing popularity of the internet has led courts to examine a defendant’s internet activity as a potential basis for jurisdiction, but the Supreme Court has not yet spoken on this subject.   Zippo Manufacturing Company v. Zippo Dot Com, 952 F.Supp. 1119 (W.D.Pa.1997), a seminal case endorsed by the Third Circuit, considered whether a defendant’s operation of a website could satisfy a federal court’s exercise of personal jurisdiction over that defendant.  The Zippo court created a “sliding scale”, whereby the quality of contacts between a web host and a forum is evaluated by examining the website’s nature and functions.  At one end of the scale are those web hosts who actively solicit business over the internet by using their websites to enter contracts or exchange data files.  If they engage in such activity knowing that their would-be customers are in another forum, jurisdiction over the web hosts in that forum is proper.  On the other end of the scale are passive hosts with purely informational websites that allow no interaction through the site-these websites do not themselves create sufficient contacts between the web host and other forums to justify an extra-territorial court’s exercise of jurisdiction.  In the middle are websites that allow the visitor to ex-change information with the host, but do not affirmatively seek business from other states. For such sites, jurisdiction must be determined on a case-by-case basis by looking at just how “interactive” and commercial in nature the exchange of information through the website is.”

“When a website is passive or falls in the middle of the Zippo sliding scale, plaintiffs may have to prove “something more” to justify the exercise of personal jurisdiction-that is, plaintiffs must show that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state.  The “something more” can include evidence of non-internet contacts, such as ongoing communications with customers in the state, business trips to the state, advertisements in local publications, and business records of sales in the state.”

Id. at 5.

The Court granted defendant’s motion to dismiss plaintiffs’ complaint because the plaintiffs failed to allege sufficient facts to show that defendant’s website was interactive.  Thus, the Court refused to exercise personal jurisdiction over defendant.  


Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

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

New Jersey Caselaw: In Suarez v. NJ.com, 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.

Comments/Questions: ljm@gdnlaw.com

© 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.

Comments/Questions: ljm@gdnlaw.com

© 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.

Comments/Questions: ljm@gdnlaw.com