By Michael Booth, From New Jersey Law Journal

Website operators have standing to step into litigation and defend anonymous users’ First Amendment rights, a New Jersey appeals court said in a ruling of first impression issued June 3.

The ruling means the news and commentary website nj.com will not have to reveal the identity of an anonymous poster who made comments critical of a local politician and his wife, who then filed a defamation claim against the commentator.

In an unpublished opinion, the two-judge Appellate Division panel said the plaintiff, Diane Trawinski, the wife of former Elmwood Park borough councilman Rich Trawinski, failed to demonstrate that the anonymous poster, “EPLifer2,” posted defamatory statements.

Appellate Division Judges Susan Reisner and Michael Haas also ruled that the website, which publishes news content from the Star-Ledger, New Jersey’s largest newspaper, had standing to challenge the subpoena because websites have the right to protect readers who post comments related to public events.

The suit alleged that “EPLifer2” and other commentators on nj.com’s Elmwood Park forum accused the couple of posting comments using the name “IamEP.” One commentator, “elmwoodoldtimer,” said on Feb. 2, 2012: “It’s actually his wife who posts here.”

That same day, “EPLifer2” posted, “IamEP is 100% the Trawinskis. Whether it’s Rich or Diane it doesn’t matter. You are not going to fool the public with your silly riddles. Anyone that reads these forums knows this is the two of you. November can’t come soon enough when team Trawinski is voted out of office. I know you are feeling the heat from the police merger you are fighting for. Pleading your case to anyone that will listen ‘wasn’t me’ ‘it was only a thought’ crying to the mayor about facebook, crying at the beefsteak to people about it. The people that you think are your friends and supporters don’t even know who you are anymore. You are drunk with this false sense of power. Get over yourself sir. For shame.”

Reisner and Haas said Diane Trawinski made only “vague, conclusory assertions” that the statements made by “EPLifer2” were defamatory.

“Moreover, expressions that clearly reflect opinion on matters of public concern are not actionable,” the judges said in upholding a decision by Bergen County Superior Court Judge Robert Wilson to dismiss the suit on summary judgment.

Both Wilson and the appeals court found that Diane Trawinski failed to meet the standards set by the Appellate Division in its 2001 ruling in Dendrite International v. John Doe.

Under that seminal ruling, a plaintiff is required to attempt to notify the anonymous online commentator first and give that person a reasonable amount of time to object to having his or her identity revealed. The plaintiff also must detail the exact statements that are alleged to be defamatory. A judge must then determine whether a prima facie case of defamation exists and explain why that is so, then conduct an analysis weighing the plaintiff’s right to pursue a legitimate defamation claim against a person’s First Amendment right to anonymous speech.

Wilson said Diane Trawinski fulfilled her requirements under the first two prongs, but failed to do so in the third.

The complaint failed to show that any of the comments made by “EPLifer2” were defamatory, Wilson said, and the appeals court agreed.

Since there was no defamation, the appeals court said, there was no reason to enforce the subpoena on nj.com.

“In Dendrite, we recognized that protecting the anonymity of online posters helps prevent embarrassment and harassment,” the judges said. Citing a 1999 ruling by the U.S. District Court for the Northern District of California, Columbia Ins. v. Seescandy.com, the judges said online posters who have done nothing wrong “should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s order to discover their identity.”

“Here, ‘EPLifer2’s’ comment represented criticism of a local politician and his spouse for their involvement in political matters,” the appeals court said. “The comments reflected ‘EPLifer2’s’ opinion of these two individuals and, at best, are ‘rhetorical hyperbole’ on a matter of public concern.”

Diane Trawinski challenged nj.com’s standing to oppose the subpoena.

Reisner and Haas acknowledged that there was no published New Jersey law addressing that issue, but pointed to two cases in other jurisdictions—a 2010 ruling by the U.S. District Court for the Western District of Pennsylvania, McVicker v. King, and another by an Indiana state appeals court in 2012, Indiana Newspapers v. Miller—that upheld the right of website operators to step in on behalf of users to enforce their First Amendment rights.

The New Jersey appeals court chose to follow those cases.

The federal court in McVicker said: “[A]nonymous commentators to the [newspaper] website face practical obstacles to asserting their own First Amendment rights because doing so would require revelation of their identities.”

“These same considerations clearly apply in this case,” Reisner and Haas said.

This is the second time an appeals court has handled this case.

In November 2012, Bergen County Superior Court Judge Mark Russello approved a subpoena requiring nj.com to turn over to Diane Trawinski any documents “identifying, containing and/or describing the name, address and/or email address of the person or persons registered to use the [screen name] ‘EPLIFER2’ on the nj.com forums, specifically the Elmwood Park forum, on the NJ.com Internet website.”

New Jersey On-Line Inc., the website operator, though not named as a defendant, objected. Trawinski asked Russello to enforce the subpoena. In February 2012, the judge ordered nj.com to comply and said it would be fined $1,000 per day if it did not comply within 14 days. The website appealed.

In the first appeals court ruling, a panel comprising Haas and Judge Douglas Fasciale said Russello failed to conduct a four-part analysis as required by Dendrite.

The judges remanded the case to Russello with instructions to conduct the correct analysis as to whether the website should be forced to reveal whatever identifying information it has. The case was then assigned to Wilson.

Nj.com’s attorney, Kevin Miller, welcomed the ruling.

“This is the second time that an appeals court has ruled that Dendrite was not complied with,” said Miller, of Robinson Miller in Newark. “The anonymous speech at issue was not defamatory.”

Miller noted that “this is the first time we have a decision that says websites have the standing to protect the First Amendment rights of anonymous users.”

Bruce Rosen, a litigator who focuses on First Amendment law, said the ruling was an important advancement of free speech rights for websites and anonymous posters.

The appeals court looked at the Pennsylvania and Indiana rulings and found them to be meritorious, said Rosen, of Florham Park’s McCusker, Anselmi, Rosen & Carvelli. “They’re saying, ‘We agree,’” Rosen said. “They’re going to give websites standing.

“They went a little further than expected in an unpublished opinion,” he said. “This is a good decision for the First Amendment.”

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For more on this story go to: http://www.njlawjournal.com/id=1202728267448/Website-Not-Required-to-ID-Anonymous-Commenter#ixzz3c6JvpWsM