Illinois Court Rejects Dentride/Cahill Protection For Anonymous Posters

An Illinois appellate court recently issued a decision that may make life a little tougher for anonymous posters to stay anonymous. The court, however, thinks it hasn’t changed things at all. The case concerned the Ottawa Illinois Times newspaper and its affiliated Web site. Like so many other newspapers, the Times allows people to post comments on its site anonymously. Posters need only provide an e-mail address and a screen name and they are free to tee off on issues of the day. In this case, some anonymous posters offered their thoughts on a proposed bed and breakfast to be operated by Donald and Janet Maxon. Apparently the B&B needed approval of the Ottawa Planning Commission. The anonymous posters made comments suggesting that there may have been a bribe involved. The Maxons filed a “Petition for Discovery Before Suit to Identify Responsible Persons and Entities.” As the title suggests, the petition allows a party to discover the identity of potential defendants before actually filing a lawsuit. The posters, proceeding as “John Does”, asked the court to dismiss the petition, contending that it did not satisfy the standards laid out in cases such as Dendrite International v. Doe and Doe v. Cahill. In those cases, courts set out a balancing test for courts to apply before outing anonymous posters. The test required that the anonymous poster receive notice of the potential claim that the petition set out the exact statement alleged to be defamatory, that the claims be sufficient to withstand a hypothetical motion for summary judgment, and that on balance the need to identify the posters overcomes the posters’ First Amendment right to speak anonymously. The Illinois court rejected that argument, finding that the Illinois rule that established the discovery petition – Rule 224 – offered essentially the same protection as the Dendrite/Cahill test. Rule 224 requires petitioners to “verify” the facts (that is, provide an affidavit as to the accuracy), requires a statement as to why the information is needed, and requires a hearing where the petitioner establishes that the anonymous person may be “responsible in damages to the petitioner.” The court felt that this last requirement – which forced the petitioner to set out the facts supporting its case protected posters from being outed in frivolous claims. I imagine this case will be headed for the Illinois Supreme Court. And media types around the country will be keeping an eye on it.