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JBG





Joined: 03 Oct 2007
Posts: 823
Reputation: 93.1Reputation: 93.1
votes: 8
Location: NYC Area

PostPosted: Fri Jul 18, 2008 9:20 pm    Post subject: Scary Court Decision on Public Postings Reply with quote

This decision should make anyone think twice about what they say in Bulletin Board posts. Even in "absolute free speech, anything goes" things are getting dicey for posters, at least those who attack real world people.

Note, this is a "public domain" decision and not subject to copyright laws.

====================================

Matter of Ottinger v. Non-Party The Journal News, 08-03892
Decided: June 27, 2008
Justice Rory J. Bellantoni

WESTCHESTER COUNTY
Supreme Court

The Attorneys for the non-party Journal News are Mark A. Fowler and Glenn C. Edwards

The attorney for petitioners is: Russell J. Ippolito

Justice Bellantoni
Click here to see Judicial Profile

The instant action was commenced by the filing of a summons and complaint on February 25, 2008. The complaint alleges that certain defamatory statements were made concerning Richard Ottinger and June Ottinger, which statements were posted on a "LoHUD" blog hosted by the New York Journal News. The defendants named in that action were John Doe 1-100 and Jane Doe 1-100.

In the complaint, plaintiffs set forth several statements by certain anonymous persons posted on the LoHUD blog. Those statements include the following:

"It now appears that it has been proven, that the Ottinger's, . . . have presented a FRAUDULENT deed in order to claim that they own land under water . . . . We are talking about the Ottingers LYING to the State, the Building Department, the ZBA and necessarily either bribing or coercing other people to do the same." (Posted September 11, 2007 by SAVE10543.)

"Equally outrageous, was that as Ms. McCrory was informing the dumbstruck BOT of the Ottingers criminal behavior . . . and advocated for the Ottinger's position in order to further their illegal scam." (Posted September 15, 2007 by hadenough.)

"He [the mayor of Mamaroneck] took the juice from Richard and June Ottinger to the tune of $25,000 so they could build their starter Taj Mahal on a substandard lot. Their money bought a compliant ZBA and Building Inspector . . . " (Posted September 19, 2007 by aoxomoxoa.)

THEY PAID THE RIGHT PEOPLE OFF! They started with taking care of the Mayor, everybody knows that. I would guess the Building inspector and Zoning Board were not forgotten in their largesse. The Ottingers have been very generous in greasing the wheels of corruption. With the news of the fraudulent deed they submitted it becomes quite clear that they also must have taken care of the surveyor and the prior owner of the property, unless they are two of the dumbest people on earth! (Posted September 23, 2007 by SAVE10543.)

In an effort to ascertain the names of the anonymous bloggers, plaintiffs served a subpoena on The Journal News on February 28, 2008.

On March 21, 2008, The Journal News made a CPLR 2304 motion to quash the subpoena. On April 11, 2008, plaintiffs cross-moved to compel pursuant to CPLR R.3124 or, in the alternative, to convert the instant action to a special proceeding pursuant to CPLR 103(c) and allow pre-action disclosure pursuant to CPLR 3102(c).

On May 28, 2008, this court held a hearing regarding the pending motions. Upon stipulation of the parties, it was ordered that the instant action be converted to a special proceeding allowing plaintiffs (now petitioners) to seek pre-action disclosure pursuant to CPLR 3102(c).

The internet is creating emerging legal issues, from jurisdiction to discovery. The identification of anonymous bloggers-posting defamatory statements on the internet - is one of those issues. There is no question that the First Amendment protects the right of a person to speak anonymously. That protection, however, is no greater than the right of a person to speak when their identity is known. Anonymous speech is not absolute and does not provide a safe haven for defamatory speech.

The New York Court of Appeals and Appellate Divisions have not yet addressed this issue. The only reported decision in New York is from the Supremes Court New York County (Greenbaum v. Google, Inc., 18 Misc.3d 185 [2007]). That case, however, failed to set a standard because the court found, as a matter of law, that the statements made were not defamatory.

The parties have urged this court to consider persuasive authority from other jurisdictions, specifically the Superior Court of New Jersey, Appellate Division decision in Dendrite International v. Doe (775 A.2d 756 [2001]) and the Delaware Supreme Court decision in Doe v. Cahill (884 A2d 451 [2005]). The court finds both decisions helpful in reaching a decision in this matter.

In Dendrite the Superior Court of New Jersey, Appellate Division established four guidelines in deciding applications for expedited discovery and compelling an internet service provider to disclose the identity of anonymous internet posters who are sued for allegedly violating the rights of individuals or corporations:

[T]he trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board;

The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster than plaintiff alleges constitutes actionable speech;

The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named defendants. In addition to establishing that its action can withstand a motion to dismiss . . . the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis; and

The court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff properly to proceed.

At the hearing on May 28, 2008, the court applied the first step in Dendrite.

The court reserved its decision on the pending motions and directed the petitioners to undertaken certain steps specified by the court to post a notification on certain Forums making known (a) the existence of the special proceeding, (b) the relief sought herein, and (c) the fact that any individual who believed that his or her rights might be affected could seek to intervene anonymously or otherwise in the special proceeding to appear on June 25, 2008. The notice was timely posted on the Forums in compliance with the direction of the court. On June 25, 2008, the court held a further hearing on the matter on pending motions. At that time, no individual sought to intervene.

At this point the court finds that the petitioners in this matter have identified and set forth the exact alleged defamatory statements made by each anonymous poster. The complaint and all information provided to the court establishes that petitioners have set forth a prima facie cause of action against the fictitiously-named defendants. Petitioners have produced sufficient evidence supporting each element of its cause of action, on a prima facie basis, except that of constitutional malice.

With regards to constitutional malice, the court finds The Delaware Supreme Court Doe v. Cahill (884 A2d 451 [2005]) helpful. In Cahill, the Delaware Supreme court held a plaintiff must produce evidence on all elements of a defamation claim within the plaintiff's control. The constitutional malice element is not within a plaintiff's control. As the Delaware court pointed out,

We are mindful that public figures in a defamation case must prove that the defendant made the statements with actual malice. Without discovery of the defendant's identity, satisfying this element may be difficult, if not impossible. Consequently, we do NOT hold that the public figure defamation plaintiff is required to produce evidence on this element of the claim.

(Id. at 464 [capitalization of "NOT" in original].) The court agrees and finds that the petitioners, at this point in the proceeding, need not prove this element to obtain pre-action disclosure.

Applying the fourth prong of Dendrite, the court finds that the balance in this case weighs in favor of the petitioners.

IT IS HEREBY ORDERED, that the motion of The Journal News is denied and the cross-motion of petitioners is granted as follows:

Within five business days of the date of this Order, The Journal News shall disclose to petitioners such information, if any, in its possession or control that could reasonably lead to the identification of the Anonymous Posters using the screen names "hadenough," "SAVE10543," and "aoxomoxoa," including posters' names, mailing addresses, any email addresses or other registration information that it may have for them including the IP address from which the blogs were posted, the corresponding internet service provider, other such information which will allow plaintiffs to identify the person(s) posting the blog entries.
Mac





Joined: 02 Sep 2006
Posts: 5500
Reputation: 104
votes: 35
Location: John Baird's riding...

PostPosted: Sat Jul 19, 2008 1:25 am    Post subject: Reply with quote

The true utility of hiding behind the relative anonymity of a user name was always dubious, especially if someone is determined to learn your identity. A couple of bloggers make a big deal of "outing" others, especially those who use their blogs to be deliberately offensive.

Freedom of speech doesn't include the right to slander, to threaten or to libel, especially in the public domain. I wonder if there's a blogger's equivalent of shouting "fire" in a crowded theatre?

-Mac
paisley_cross





Joined: 09 Jul 2008
Posts: 806
Reputation: 124.9
votes: 3
Location: Canada

PostPosted: Sat Jul 19, 2008 12:51 pm    Post subject: Reply with quote

Mac wrote:
The true utility of hiding behind the relative anonymity of a user name was always dubious, especially if someone is determined to learn your identity. A couple of bloggers make a big deal of "outing" others, especially those who use their blogs to be deliberately offensive.

Freedom of speech doesn't include the right to slander, to threaten or to libel, especially in the public domain. I wonder if there's a blogger's equivalent of shouting "fire" in a crowded theatre?

-Mac


I don't regard myself as anonymous. I know I can be traced and therefore am accountable with respect to anything I write.
Sheila





Joined: 09 Feb 2008
Posts: 556
Reputation: -6.8
votes: 16
Location: Central Alberta

PostPosted: Sat Jul 19, 2008 3:03 pm    Post subject: Reply with quote

I was actually under the impression that we were "safe" here. Should I hire a lawyer now, Mac? Or can I start deleting some posts?
paisley_cross





Joined: 09 Jul 2008
Posts: 806
Reputation: 124.9
votes: 3
Location: Canada

PostPosted: Sat Jul 19, 2008 4:36 pm    Post subject: Reply with quote

Sheila wrote:
I was actually under the impression that we were "safe" here. Should I hire a lawyer now, Mac? Or can I start deleting some posts?


Don't think our friends at FD feel very safe since Richard Warman went after them.
don muntean





Joined: 07 Sep 2006
Posts: 2262
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votes: 8
Location: Saskatchewan

PostPosted: Sat Jul 19, 2008 4:57 pm    Post subject: Reply with quote

Well I have always posted with my real name - since going online 2000! Doing so calls one to be sure of what they post - sure that they are not afraid to be connected to the comments.

Oftentimes over the years I have seen people create a fake identity and start to rail against people - unleashed - I think it's stupid.

I would rather use my real name and then over time all my internet postings are indexed by google etc., and it is a good thing - people can see what I believe and how it has evolved over the years.

Interestingly I have been accused of internet defamation of a certain dentist - yet - I have posted only truth - as evidenced by the fact the police have never deterred me from my protest! The dentist tried to use the police and the courts to stop my internet boycott of her dental practice - but failed.

I take efforts to not post lies and innuendos in any internet forums. Of course there are many people who may not like some of my postings but that is due to divergent opinion's and that is part and parcel to - the great discussion.

I think that BT is a place where generally everyone fallows the rules of good discussion.

I encourage others to step out of the shadows too!

Here is a bit of wisdom for the ancient Hebrew Sages:

"Consider three things and you will not come into the grip of transgression: know what is above you a watchful Eye, an attentive Ear, and all your deeds are recorded in a Book"

So it's not difficult to apply that with a sense of our 'modern' system of 'records keeping' contrasted to our new world of technologies such as this world of the internet...
Mac





Joined: 02 Sep 2006
Posts: 5500
Reputation: 104
votes: 35
Location: John Baird's riding...

PostPosted: Sat Jul 19, 2008 5:59 pm    Post subject: Reply with quote

Sheila wrote:
I was actually under the impression that we were "safe" here. Should I hire a lawyer now, Mac? Or can I start deleting some posts?

As long as you haven't libeled, slandered or threatened anyone, you should be fine.

Although Warman and his ilk might like to think otherwise, freedom of expression isn't just an American concept. It's actually written into Trudeau's flawed Charter... and the pendulum appears to have swung back against the Warman types... long overdue...

-Mac
JBG





Joined: 03 Oct 2007
Posts: 823
Reputation: 93.1Reputation: 93.1
votes: 8
Location: NYC Area

PostPosted: Sat Jul 19, 2008 11:04 pm    Post subject: Reply with quote

Mac wrote:
Sheila wrote:
I was actually under the impression that we were "safe" here. Should I hire a lawyer now, Mac? Or can I start deleting some posts?

As long as you haven't libeled, slandered or threatened anyone, you should be fine.

Although Warman and his ilk might like to think otherwise, freedom of expression isn't just an American concept. It's actually written into Trudeau's flawed Charter... and the pendulum appears to have swung back against the Warman types... long overdue...

-Mac
I hope that pendulum swing benefits more people than can afford a Maclean's-style battle.
Mac





Joined: 02 Sep 2006
Posts: 5500
Reputation: 104
votes: 35
Location: John Baird's riding...

PostPosted: Sat Jul 19, 2008 11:16 pm    Post subject: Reply with quote

JBG wrote:
I hope that pendulum swing benefits more people than can afford a Maclean's-style battle.

Let's hope. Most people were shocked to hear of the tactics of the HRCs and the Warman types and found the HRCs' prejudicial attitudes offensive. This seems to indicate the HRCs do not have universal support as they would like us to believe.

Was rolling the rock over and exposing the squirmy things underneath enough to put an end to their activities? Unlikely but it's a start.

-Mac
paisley_cross





Joined: 09 Jul 2008
Posts: 806
Reputation: 124.9
votes: 3
Location: Canada

PostPosted: Sun Jul 20, 2008 5:52 am    Post subject: Reply with quote

Mac wrote:
JBG wrote:
I hope that pendulum swing benefits more people than can afford a Maclean's-style battle.

Let's hope. Most people were shocked to hear of the tactics of the HRCs and the Warman types and found the HRCs' prejudicial attitudes offensive. This seems to indicate the HRCs do not have universal support as they would like us to believe.

Was rolling the rock over and exposing the squirmy things underneath enough to put an end to their activities? Unlikely but it's a start.

-Mac


One of my peeves about Harper is his not following through in his transparency in appointments. The job of the Chief Commissioner of the CHRC came open unexpectedly and he had to fill it.

What an oportunity to have his nominee appear before a Parliamentary Committee so the whole role of the CHRC could be debated.

But alas, in the traditional Canadian way there was no such opportunity. Jennifer Lynch was appointed via press release.
JBG





Joined: 03 Oct 2007
Posts: 823
Reputation: 93.1Reputation: 93.1
votes: 8
Location: NYC Area

PostPosted: Sun Jul 20, 2008 6:07 am    Post subject: Reply with quote

paisley_cross wrote:
What an oportunity to have his nominee appear before a Parliamentary Committee so the whole role of the CHRC could be debated.

But alas, in the traditional Canadian way there was no such opportunity. Jennifer Lynch was appointed via press release.
Not being Canadian, I'm going to guess at the reason for this. I would assume that being in a mniority government means he has to choose what issues the public would support him in an election, and the public may not be up to our level of comprehension concerning the impact of the HRC's and Wurman.
paisley_cross





Joined: 09 Jul 2008
Posts: 806
Reputation: 124.9
votes: 3
Location: Canada

PostPosted: Sun Jul 20, 2008 6:26 am    Post subject: Reply with quote

JBG wrote:
paisley_cross wrote:
What an oportunity to have his nominee appear before a Parliamentary Committee so the whole role of the CHRC could be debated.

But alas, in the traditional Canadian way there was no such opportunity. Jennifer Lynch was appointed via press release.
Not being Canadian, I'm going to guess at the reason for this. I would assume that being in a mniority government means he has to choose what issues the public would support him in an election, and the public may not be up to our level of comprehension concerning the impace of the HRC's and Wurman.


We like to think that the Macleans and Levant cases have touched the public consciousness but I suspect that is not the case. The only people who really care are those concerned with free speech - alas, IMO, few Canadians.

Bur regardless, all major appointments should undergo some form of Parliamentary oversight.

And talking of openness how about this?

Quote:
Canadian Human Rights Commission Launches Independent Review On Hate Messaging on the Internet


CHRC

Independent? It's being undertaked by the bloody regulator. Gimme a break. :twisted:
JBG





Joined: 03 Oct 2007
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Location: NYC Area

PostPosted: Sun Jul 20, 2008 7:18 am    Post subject: Reply with quote

paisley_cross wrote:
Independent? It's being undertaked by the bloody regulator. Gimme a break. :twisted:
Sounds objective. LOL.
paisley_cross





Joined: 09 Jul 2008
Posts: 806
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PostPosted: Sun Jul 20, 2008 8:51 am    Post subject: Reply with quote

JBG wrote:
paisley_cross wrote:
Independent? It's being undertaked by the bloody regulator. Gimme a break. :twisted:
Sounds objective. LOL.


Ah, the essence of politics. To be seen to be doing something when in fact you are doing nothing at all.
Mac





Joined: 02 Sep 2006
Posts: 5500
Reputation: 104
votes: 35
Location: John Baird's riding...

PostPosted: Sun Jul 20, 2008 12:46 pm    Post subject: Reply with quote

paisley_cross wrote:
One of my peeves about Harper is his not following through in his transparency in appointments. The job of the Chief Commissioner of the CHRC came open unexpectedly and he had to fill it.

What an oportunity to have his nominee appear before a Parliamentary Committee so the whole role of the CHRC could be debated.

But alas, in the traditional Canadian way there was no such opportunity. Jennifer Lynch was appointed via press release.

Agreed. I know Harper is fighting an uphill battle in the House, in the media and, in some cases, within his party but opportunities like this one don't come along everyday. Perhaps he was worried about the optics of dragging his appointee through a trial by fire during a time when the HRCs are already under scrutiny but that's exactly what needed to happen so the role of the Commissioner AND the role of the HRCs could be exposed and debated openly. Let's hear all those Liberal politicians openly proclaim their disdain for freedom of speech so their voters know what they're about.

-Mac
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Scary Court Decision on Public Postings

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