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Defamation plaintiff may be able to unmask online foe

By David L. Hudson Jr.
First Amendment Center research attorney

A Pennsylvania judge has refused to apply any heightened standard that would make it harder for defamation plaintiffs to obtain a court order to unmask anonymous online posters.

Instead, Common Pleas Judge Albert W. Sheppard Jr. ruled Jan. 4 in Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA Development that existing procedure rules common to all civil cases were adequate to protect First Amendment concerns.

A “heightened standard” is a special hurdle that a litigant must clear, in this case to win approval for demanding the identities of those accused of committing libel online against a plaintiff. Here, the judge ruled that people suing for defamation don’t have to meet such a heightened standard as had been erected by other courts to protect online speech.

Several courts have adopted heightened standards for such defamation plaintiffs out of concern that these suits can chill anonymous Internet speech and that some suits are designed to silence critics. The Pennsylvania judge followed a different path in a case involving a bitter Philadelphia-area real estate dispute between Gerasimos “Jerry” Pantelidis and Michael Karp. Karp’s mortgage company had loaned Pantelidis $8 million to purchase a hotel. The dispute turned into litigation with the Philadelphia law firm Klehr Harrison representing Karp.

Pantelidis’ company, JPA Development, operated two Web sites that became the basis of a defamation suit. The sites contained descriptions of the litigation between Pantelidis and Karp and their respective companies. One of the sites, now defunct, included a link to a “guest book” that allowed anonymous individuals to post comments. Several comments disparaged the Klehr Harrison law firm. One read: “Klehr Harrison attorneys are THE lowest of the low among attorneys, and could not be held in lower regard among their peers when it comes to their complete disregard for ethical practices, AND their abuse of judicial proceedings.”

Klehr Harrison sued JPA Development, Pantelidis and others for defamation, alleging that the Web sites contained false statements of fact that impugned the firm’s reputation. In discovery, the law firm sought to force the defendants to disclose the identities of those individuals who posted material on the guest book. The defendants responded by filing a motion for a protective order, seeking to seal the identities of the anonymous posters.

In September 2005, Judge Sheppard denied the defendant’s motion for a protective order from the Court of Common Pleas of Philadelphia County. The defendants appealed to Sheppard to re-evaluate that ruling. On Jan. 4, Sheppard issued his opinion in Klehr Harrison v. JPA Development affirming his earlier ruling denying the protective order.

In his ruling, Sheppard noted that “courts have arrived at differing standards for determining whether to allow disclosure of an anonymous internet user’s identity when the user is sued for making defamatory statements over the Internet.”

He mentioned the standards articulated by the New Jersey Superior Court in Dendrite International v. Doe (2001) and by the Delaware Supreme Court in Doe v. Cahill (2005).

Under the Dendrite standard, a defamation plaintiff seeking to unmask online John Does must make out a prima facie, or basic, case of defamation before the identities will be revealed. The plaintiff must: (1) demonstrate that he or she has undertaken efforts to notify the anonymous posters that they are the subject of a subpoena; (2) identify to the court the statements made by each anonymous poster; and (3) establish a prima facie cause of action for defamation.

If the court determines there is such a prima facie case, it then balances the First Amendment right of anonymous speech against the strength of the prima facie case presented and the need for disclosure. The Dendrite standard strongly protects what it terms “the well-established First Amendment right to speak anonymously.”

The Delaware Supreme Court adopted a different standard in Doe v. Cahill, ruling that defamation plaintiffs must meet a “summary judgment standard” before identities of online defamers will be revealed. That court ruled that a plaintiff “must support his defamation claim with facts sufficient to defeat a summary judgment motion.” To survive a summary-judgment motion, a litigant must show that there are genuine issues of material fact in dispute that must be resolved by a factfinder (a jury or judge). The Delaware high court wrote that “allowing a defamation plaintiff to unmask an anonymous defendant’s identity through the judicial process is a crucial form of relief that if too easily obtained will chill the exercise of First Amendment rights to free speech.”

Judge Sheppard adopted neither of these standards. Instead, he decided that “existing procedural rules are adequate to protect anonymous [posters’] First Amendment rights.” He cited a law review by Michael S. Vogel, an adjunct professor of law at the University of Illinois, for the proposition that “the rush to apply new standards should be slowed.”

Vogel argues that a John Doe can file a motion to dismiss unwarranted discovery requests seeking the identity of anonymous online speakers.

“This court accepts the notion that implementation of new standards for cases involving plaintiff’s efforts to learn the identities of anonymous internet posters will likely do more harm than good,” Sheppard wrote. “Further, this court believes that a balancing of John Does’ First Amendment rights against the plaintiff’s rights to the information sought is built into our Commonwealth’s existing civil procedure.”

Pennsylvania’s rules of evidence prohibit discovery when it is sought in bad faith, would cause unreasonable burdens and goes beyond the scope of discovery. Sheppard noted that “the question whether the discovery sought would cause defendants unreasonable burden necessarily compels an analysis of the anonymous posters’ First Amendment rights.”

However, this analysis led Sheppard to conclude that the posters’ First Amendment rights were limited because many of the statements on the guestbook were defamatory per se. “And while, the posters are undeniably entitled to First Amendment rights, the defamatory per se statements are not entitled to First Amendment protection,” he wrote.

Unless there is a successful appeal, Sheppard’s ruling means that the defendant will have to answer interrogatories and other discovery requests that will reveal the identity of those who posted the online statements.

The attorneys handling the case could not be reached for comment. Vogel, whose law review article Sheppard cited for legal authority, spoke about the ruling.

“In substance, if not in form, the Cahill standard is actually not that far off from what I have proposed — in essence, Cahill requires that plaintiffs produce evidence, but only such evidence that they would be expected to be able to produce at a preliminary stage of a proceeding in response to a summary judgment motion,” Vogel said. “Indeed, Klehr Harrison recognizes that the outcome it reaches is consistent with that suggested by Cahill, even as it does not adopt the ‘Cahill test.’ (In contrast, Dendrite went far beyond existing procedure by requiring a plaintiff to produce evidence at a preliminary stage that would not be expected of plaintiffs in other contexts.

“What is important about Klehr Harrison, then, is that it recognizes explicitly what perhaps Cahill recognized implicitly — that the benefit of creating new tests is outweighed by the risk that those tests will arbitrarily end cases when other, similarly situated cases survive,” Vogel said. “I hope that this decision will give other courts the confidence to deal with this kind of case under their existing procedures.”


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Dissenting justice says ruling in campaign-flier case 'substantially chilled First Amendment rights of speech and association.' 07.15.06

N.J. court upholds Net user's right to anonymity
Appeals panel invalidates subpoena used to obtain woman's personal information from her ISP, ruling she had a 'legitimate and substantial' interest in concealing her identity. 01.23.07

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New York judge had ordered Google to tell Liskula Cohen who was behind verbal taunts on 08.20.09

Md. high court sets legal standard for outing online foes
By David L. Hudson Jr. Judges find libel plaintiffs must establish basic case of defamation before trial court orders ISPs to I.D. anonymous posters. 03.03.09

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Online libel

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