Dendrite – One Size May Not Fit All
The Internet did not create the tension between one person’s right to speak anonymously and another person’s right to sue for libel, but it sure has made it a popular topic. And the tension is real. People use the Internet to vent about any number of topics – lousy retail service, work conditions, politics. And on occasion, for any number of reasons, the venters (hey spellcheck, I think that’s a word!) may choose to do it anonymously, especially if their words are harsh. And so long as those words are opinions, the subject shouldn’t be able to sue for libel. On the other hand, if the venters make a false statement of fact, the subject ought to have the right to sue. The question is, at what point should a court order the anonymous speaker to be “outed”? Should the subject of a post who probably can’t win a libel suit nonetheless be allowed to discover the anonymous speaker’s identity? Can’t you just feel the tension? New Jersey was one of the first states to address the tension in the case of Dendrite Int’l. v. Doe No. 3. And in that case, the court required the subject of the post to show sufficient facts that would support the claim that the anonymous speaker defamed him. The test was designed to stop the subject of an annoying, but not defamatory posting to file a lawsuit just to unmask the speaker. But the recent New Jersey case of Warren Hosp. v. Doe shows that Dendrite may not apply to every anonymous speaker. Warren hospital brought the case against John Doe One and John Doe Two (a colleague of mine had to sue an anonymous party once, and not knowing if the person was a man or a woman, used the name “Pat Doe”). Both Does managed to hack into the hospital’s computer system, and while there posted allegedly defamatory messages about certain hospital employees. Doe One compared the employees to Hitler and other dictators. Doe Two accused the employees of sexual misconduct and other misdeeds. The Does moved to dismiss the case, based in large part on Dendrite. But the court saw an important distinction. The speakers in Dendrite weren’t hackers. They posted their offending comments on a public Internet message board. So the only “wrong” there was the speech. In Warren, though the defendants allegedly hacked into the hospital’s computer system and then allegedly defamed the plaintiffs. Because the case was based on conduct as well as speech, the court felt it did not need to apply the Dendrite standard as rigorously. It compared the hacking to a the defendants breaking into the hospital and spray painting messages on the walls. The lesson? The First Amendment protects anonymous speech, but not anonymous trespassing!