Identifying Unnamed Online Speakers

The Dendrite test requires plaintiffs to:

• Provide notice to the potential defendants and confer said potential defendants an opportunity to defend their anonymity;'
• Specify the statements that allegedly violate the plaintiff's rights;'
• Plead a claim that could survive a motion to dismiss; and'
• Produce evidence supporting each element of the claim. (Until recently, New Jersey courts formulaically limited a plaintiff's access to information held by an Internet Service Provider (ISP) through the application of Dendrite.)

Test Limitations

The Warren Hospital court found that the protections afforded by the use of the Dendrite test are limited. Only an Internet speaker who uses a public, rather than private, Internet forum should be protected from the enforcement of subpoenas that allow the ISP's disclosure of the Internet speaker's identity.

Courts have used the Dendrite test to protect the First Amendment's right to speak anonymously, and recognize that First Amendment rights cannot be infringed without a compelling state interest. It has been argued that the Dendrite test is flexible because it allows a court to balance the interests of the plaintiff, who claims to have been wronged, against the interest in anonymity of the Internet speaker, who claims his or her alleged wrong should not be subject to litigation.

The Dendrite test provides for a preliminary determination based on a case-by-case, individualized assessment of the equities. It attempts to overcome the choice between protecting anonymity or allowing victims to obtain redress for real harms by examining the aspect of the alleged bad act without requiring the defendant to be identified.

Ideally, it allows Internet speakers who make wrongful statements about others to be appropriately prosecuted. Simultaneously, it upholds appropriate anonymity as permitted by the First Amendment.

Applying the Dendrite Test

In Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the trial court applied the four-part Dendrite test to John Doe defendants who broke into the plaintiff's computer system and posted defamatory statements. Based on this application, the trial court quashed a subpoena to Verizon Communications. The Appellate Division reversed the trial court.

The appeals court acknowledged that the First Amendment protects free speech of anonymous persons, including on the Internet. However, the court found that the Dendrite criteria were designed to address a public message board, while this case involved persons who hacked into a private computer system. Consequently, the different facts warranted a different result.

In particular, the court found that the defendants' electronic actions were no different than if they had broken into the plaintiff's work place and painted their messages on the hospital's walls. By doing so, the court rejected the defendants' claim that such activity is entitled to First Amendment protection of their anonymity through a strict application of the Dendrite test. Thus, the appellate court found that at least one of the alleged statements would survive a motion to dismiss the complaint; the subpoena to Verizon Communications should not have been quashed.

The Dendrite test has since been applied to other cases throughout the United States, such as: Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. 2007); Independent Newspapers v. Brodie, 966 A.2d 432 (Md 2009); and Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (Ct. App. 2008).
In each of these cases, the courts have held that the qualified privilege to speak anonymously requires the trial court to balance the equities and rights at issue. By doing so, they are ensuring that a plaintiff alleging defamation has a valid reason for piercing the speaker's anonymity. Similarly, the Warren Hospital case will encourage the adoption of the policy that only an Internet speaker who uses a public, rather than private, Internet forum should be protected from the enforcement of subpoenas that allow the ISP to disclose the Internet speaker's identity.

Recently, the Michigan Court of Appeals, in Thomas M. Cooley Law School v. John Doe 1 and John Does 2-4, Case No. 307426 (Ingham Circuit Court LC No. 11-000781-CZ), found a trial court erred when it allowed the Thomas M. Cooley Law School to unmask an anonymous Internet critic. This decision is part of an ongoing dispute between a blogger and his former school. Cooley Law School sued an anonymous blogger who posted comments on the blog, defamed the school and intentionally interfered with the law school's business opportunities.

Initially, Cooley did not know who was behind the blog, and its legal team issued a subpoena seeking his identity from Weebly, Inc., the California company that hosted the blog. The blogger moved to quash the subpoena in Michigan, but Cooley sought a separate subpoena from a California court. Due to a miscommunication, Weebly administrators disclosed the blogger's identity, but the trial judge required Cooley to sequester the identifying information.
The motion to quash the subpoena in Michigan provoked a court hearing. At that hearing, an amicus curiae brief urged adoption of the Dendrite test. The court denied Doe's motion to quash, saying that it was applying the Dendrite test but, in fact, not requiring Cooley to present any evidence that Doe had made false statements.

On appeal, the blogger successfully argued that the trial judge misapplied the Dendrite test. The Court of Appeals granted permission to appeal, and reversed on the narrow grounds that Michigan law allows a protective order to be granted protecting the identity of an anonymous defendant while the defendant seeks to have the lawsuit dismissed, either on the face of the complaint or for lack of evidence.

The appellate court's ruling was a victory for the blogger. He may be able to use this ruling as a basis for dismissal of the complaint against him.

One appellate judge dissented in part, writing that adopting the Dendrite test in Michigan would be a better approach to balancing the First Amendment rights of an anonymous critic with a plaintiff's right to pursue allegations of defamation. As this case evolves, it may be argued that, just as the Warren Hospital case has limited the application of Dendrite, a Michigan court may find that it should fully adopt the Dendrite test so long as it is modified according to Warren Hospital.

Jonathan Bick is Of Counsel at Brach Eichler LLC in Roseland, NJ. A member of this newsletter's Board of Editors, he is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know about Internet Law (Random House 2000). He can be reached at [email protected].

The ' Dendrite test,' which came out of Dendrite v. Doe , 775 A.2d 756 (N.J. App. 2001), has discouraged lawsuits whose real objective is identifying anonymous speakers. Prior to Dendrite, thousands of lawsuits were filed each year seeking to identify Internet speakers, and enforcement of subpoenas was almost automatic. Since Dendrite, both the number of lawsuits designed to identify Internet speakers and the automatic nature of the enforcement of those subpoenas has declined due to the broad application of Dendrite. Recently, an appellate court in Warren Hospital v. John Does (1-10), Docket No. A-4119-11T4 __ N.J. Super. __ (App. Div. April 2013), has limited the application of Dendrite. Like Dendrite, the Warren Hospital ruling has broad ramifications outside of NJ.

The Dendrite Test

In Dendrite, a computer software seller brought a John Doe lawsuit against individuals who had anonymously posted criticisms of the company on a Yahoo message board. The court rejected one of Dendrite's requests to compel Yahoo to reveal the identity of an anonymous defendant. The appellate court upheld the district court's decision and, in doing so, created the four-part Dendrite test. The test is an assemblage of guidelines for determining the circumstances under which an anonymous Internet speaker may be identified by a third party.

The Dendrite test requires plaintiffs to:

• Provide notice to the potential defendants and confer said potential defendants an opportunity to defend their anonymity;'
• Specify the statements that allegedly violate the plaintiff's rights;'
• Plead a claim that could survive a motion to dismiss; and'
• Produce evidence supporting each element of the claim. (Until recently, New Jersey courts formulaically limited a plaintiff's access to information held by an Internet Service Provider (ISP) through the application of Dendrite.)

Test Limitations

The Warren Hospital court found that the protections afforded by the use of the Dendrite test are limited. Only an Internet speaker who uses a public, rather than private, Internet forum should be protected from the enforcement of subpoenas that allow the ISP's disclosure of the Internet speaker's identity.

Courts have used the Dendrite test to protect the First Amendment's right to speak anonymously, and recognize that First Amendment rights cannot be infringed without a compelling state interest. It has been argued that the Dendrite test is flexible because it allows a court to balance the interests of the plaintiff, who claims to have been wronged, against the interest in anonymity of the Internet speaker, who claims his or her alleged wrong should not be subject to litigation.

The Dendrite test provides for a preliminary determination based on a case-by-case, individualized assessment of the equities. It attempts to overcome the choice between protecting anonymity or allowing victims to obtain redress for real harms by examining the aspect of the alleged bad act without requiring the defendant to be identified.

Ideally, it allows Internet speakers who make wrongful statements about others to be appropriately prosecuted. Simultaneously, it upholds appropriate anonymity as permitted by the First Amendment.

Applying the Dendrite Test

In Central Hudson Gas & Electric Corp. v. Public Service Commission , 447 U.S. 557 (1980), the trial court applied the four-part Dendrite test to John Doe defendants who broke into the plaintiff's computer system and posted defamatory statements. Based on this application, the trial court quashed a subpoena to Verizon Communications. The Appellate Division reversed the trial court.

The appeals court acknowledged that the First Amendment protects free speech of anonymous persons, including on the Internet. However, the court found that the Dendrite criteria were designed to address a public message board, while this case involved persons who hacked into a private computer system. Consequently, the different facts warranted a different result.

In particular, the court found that the defendants' electronic actions were no different than if they had broken into the plaintiff's work place and painted their messages on the hospital's walls. By doing so, the court rejected the defendants' claim that such activity is entitled to First Amendment protection of their anonymity through a strict application of the Dendrite test. Thus, the appellate court found that at least one of the alleged statements would survive a motion to dismiss the complaint; the subpoena to Verizon Communications should not have been quashed.

The Dendrite test has since been applied to other cases throughout the United States, such as: Mobilisa, Inc. v. Doe , 170 P.3d 712 (Ariz. 2007); Independent Newspapers v. Brodie , 966 A.2d 432 (Md 2009); and Krinsky v. Doe 6 , 72 Cal. Rptr. 3d 231 (Ct. App. 2008).
In each of these cases, the courts have held that the qualified privilege to speak anonymously requires the trial court to balance the equities and rights at issue. By doing so, they are ensuring that a plaintiff alleging defamation has a valid reason for piercing the speaker's anonymity. Similarly, the Warren Hospital case will encourage the adoption of the policy that only an Internet speaker who uses a public, rather than private, Internet forum should be protected from the enforcement of subpoenas that allow the ISP to disclose the Internet speaker's identity.

Recently, the Michigan Court of Appeals, in Thomas M. Cooley Law School v. John Doe 1 and John Does 2-4, Case No. 307426 (Ingham Circuit Court LC No. 11-000781-CZ), found a trial court erred when it allowed the Thomas M. Cooley Law School to unmask an anonymous Internet critic. This decision is part of an ongoing dispute between a blogger and his former school. Cooley Law School sued an anonymous blogger who posted comments on the blog, defamed the school and intentionally interfered with the law school's business opportunities.

Initially, Cooley did not know who was behind the blog, and its legal team issued a subpoena seeking his identity from Weebly, Inc., the California company that hosted the blog. The blogger moved to quash the subpoena in Michigan, but Cooley sought a separate subpoena from a California court. Due to a miscommunication, Weebly administrators disclosed the blogger's identity, but the trial judge required Cooley to sequester the identifying information.
The motion to quash the subpoena in Michigan provoked a court hearing. At that hearing, an amicus curiae brief urged adoption of the Dendrite test. The court denied Doe's motion to quash, saying that it was applying the Dendrite test but, in fact, not requiring Cooley to present any evidence that Doe had made false statements.

On appeal, the blogger successfully argued that the trial judge misapplied the Dendrite test. The Court of Appeals granted permission to appeal, and reversed on the narrow grounds that Michigan law allows a protective order to be granted protecting the identity of an anonymous defendant while the defendant seeks to have the lawsuit dismissed, either on the face of the complaint or for lack of evidence.

The appellate court's ruling was a victory for the blogger. He may be able to use this ruling as a basis for dismissal of the complaint against him.

One appellate judge dissented in part, writing that adopting the Dendrite test in Michigan would be a better approach to balancing the First Amendment rights of an anonymous critic with a plaintiff's right to pursue allegations of defamation. As this case evolves, it may be argued that, just as the Warren Hospital case has limited the application of Dendrite, a Michigan court may find that it should fully adopt the Dendrite test so long as it is modified according to Warren Hospital.

Jonathan Bick is Of Counsel at Brach Eichler LLC in Roseland, NJ. A member of this newsletter's Board of Editors, he is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know about Internet Law (Random House 2000). He can be reached at [email protected].