108 SIDELINES JANUARY 2013
FOR HORSE PEOPLE • ABOUT HORSE PEOPLE
e
Equine Law
Careful What You Say Online
By Lisa Hollister, Esq.
Horse people love to talk about what goes on in the horse world.
Who did what, where and when. With all of the online sites, people
have a tendency to share their comments online about everything.
Unfortunately some of these remarks are exceptionally unkind
and range from being merely nasty comments about how someone
looks or how many marriages they have had to being libelous
such as actually calling someone a crook for having sold or leased
a horse or pony. What most of these posters fail to realize is
that by typing their statements about other people, they could be
committing defamation and their comments could expose them to
liability.
Does One have the right to Speak Anonymously Online?
The U.S. Supreme Court case, Buckley v. Am. Constitutional
Law Found., 525 U.S. 182 held that anonymous speech is
generally protected by the U.S. Constitution. The theory behind
allowing anonymous speech is that by allowing speakers to
withhold their identities and not expose themselves to harassment
or persecution and thus ensure that ideas will be shared and that
the sharing of ideas is good for our open society. However the
High Court also recognizes that this right is not absolute. When
reviewing online liability the most prevalent limitation to free
speech is when the speaker’s words rise to the level of defamation.
Defamation
-- Before fling a legal complaint against an Internet
poster who is saying malicious and potentially defamatory things
about you or your business you should frst determine whether
what the Poster is saying would be considered defamation by
a Court of Law. It is important to understand that defamation
comes in two types of causes of action: slander (verbal) or libel
(written). According to Blacks Law Dictionary, a communication
is defamatory if it “tends so to harm the reputation of another
as to lower him in the estimation of the community or to deter
third persons from associating or dealing with him.” Such
communications can be either libel or slander. When dealing with
a communication that a Poster puts on a site, the proper cause of
action would be libel. Once you have determined that the Poster’s
cause of action rises to the level of defamation you now need
to fnd out who the Poster is so you can serve the Poster with a
complaint and take legal action against him or her.
Unmasking and Serving an Anonymous Poster
Discovering the identity of an anonymous user of an Internet
Service Provider (ISP) message board is a major problem when
your good name is being wrongfully attacked on the Internet. Ob-
viously the problem is that you now need to serve an unknown in-
dividual who is hiding behind an alias. To serve the Poster you will
need to serve an unmasking subpoena to the Poster. Unmasking
Subpoenas is a complicated legal concept because the Courts
are asked to allow you to gain the identity of someone who is hid-
ing behind an alias. Should the courts allow a plaintiff to unmask
anonymous defendants too easily has been criticized as having
the potential of too easily chilling speech because anonymous
speakers might be subjected to harassment, retaliation or retribu-
tion for merely expressing opinions which could be considered
unpopular. The reader should be aware that this issue is both so
new and complicated that not all courts agree as to what guide-
lines to impose in granting the Plaintiff in such a case to success-
fully serve an unmasking subpoena.
Dendrite International, Inc. v. John Doe, 342 N.J. Supper. 134
(2001)
One particularly interesting case (but unfortunately not a horsey
case) that has been repeatedly cited by subsequent courts and
deals with the issue of having the right to serve an unmasking
subpoena is the New Jersey Superior Court case of Dendrite In-
ternational, Inc. The court in this case offered the following guide-
lines to trial courts when faced with a plaintiff’s application to com-
pel an ISP to honor a subpoena and disclose the identity of an
anonymous internet poster being sued for allegedly committing
defamation.
Four Prong Guideline Proposed by Dendrite: The court pro-
posed a four prong guideline prior to a court honoring an unmask-
ing subpoena.
Notifcation efforts: when a plaintiff makes an application to dis-
cover the identity of an anonymous poster (an unmasking sub-
poena) the court should frst require the plaintiff to undertake ef-
forts to notify the posters that they are the subject of a subpoena
or application for an order of disclosure. These notifcation efforts
should include “posting a message of notifcation of identity dis-
covery request to the anonymous user on the ISP’s pertinent mes-
sage board” where the objectionable communications were made.
The Plaintiff must demonstrate that a good-faith effort has been
made to comply with service of process requirements.
The plaintiff should also “identify and set forth the exact state-
ments” which have been posted on line and that the plaintiff claims
are “actionable speech”.
The court should review both the complaint and all of the infor-
mation provided by the plaintiff to determine whether or not the
plaintiff has brought a prima facie cause of action (a case support-
ed by suffcient evidence to show the plaintiff has a possible case)
against the anonymous defendant(s). Specifcally that the posting
was false and was made to third parties via an online posting.
(However, expression of opinions rather than assertions of fact,
are considered privileged and even though they may be offensive,
cannot be the subject of an action for defamation)
Once the plaintiff has proven the above requirements the court
must then balance the defendant’s frst amendment right of anon-
ymous free speech against the strength of the case being brought
by the plaintiff.
Obviously once you have obtained the identity of the individual
or individuals who allegedly libeled you on line you still must prove
your case. However, gaining the poster’s identity is a big step in
making your case.
Conclusion
The guidelines for serving an online defendant via an unmasking
subpoena has not been standardized by all of the courts and most
likely will not be until it has been addressed by the U.S. Supreme
Court. It is my suggestion that when online you need to realize,
regardless of the exact test applied by a particular jurisdiction, you
can be held accountable for what you say, so be nice!
Lisa Hollister is an attorney practicing
in Cincinnati, Ohio. Questions for Ms.
Hollister’s column can be addressed
to twinbridgefarm@aol.com.