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Illinois appellate court unmasks anonymous commenters

By J. DeVoy

The Illinois Appellate Court’s 3d District recently overturned the LaSalle County circuit court’s decision to preserve online anonymity for two commenters.  In the comments section of an Ottowa Times’ online article, the anonymous parties accused the plaintiffs, a local couple, of making bribes in order to secure favorable zoning treatment for land they owned.

The dispute’s subject matter raises interesting questions of public importance and privilege for the commenters’ statements.  Still, the commenters’ accusations of the officials’ corruption through accepting bribes calls for a more nuanced argument than merely claiming the statements were mere opinion.  The Tribune and other news organizations filed amicus briefs in the case, arguing in favor of commenter anonymity for the sake of freer, more open discourse.

If appealed further, Illinois will have a chance to weigh in on the standard for unmasking anonymous internet commenters.  Many states have followed the Delaware Supreme Court’s standard in Cahill v. Doe, which requires a plaintiff to present evidence that could defeat a defendant’s motion for summary judgment in order for the court to issue a subpoena that would unmask a Doe defendant.  Though a higher standard than bare “good cause,” all that is required to oppose a motion for summary judgment is an issue as to some material fact.  While some facts are required under this standard, and it prevents devious plaintiffs from baselessly denuding defendants of their anonymity, it is not a particularly high threshold to meet.

Cahill is not the undisputed measuring stick for determining whether anonymity should be preserved or stripped from an internet commenter, though.  In Dendrite International v. Does, the New Jersey Appellate Court set forth a five-factor balancing test for compelling an ISP to unmask an anonymous poster.  The factors considered are:

1) The plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him or her to respond;

2) Plaintiff must identify the exact defamatory statements made by the poster;

3) The complaint must set forth a prima facie cause of action;

4) The plaintiff must bring forth sufficient evidence for each element of its claim; and

5) the presiding court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the plaintiff’s prima facie case and the necessity for the disclosure of the defendant’s identity.

There is evidence that the multi-factor Dendrite case is becoming the favored standard for evaluating subpoenas that would unmask anonymous defendants.  The Arizona Appellate Court remanded the case in Mobilisa v. Doe to the trial court with specific instructions to apply the Dendrite test, as its application of the Cahill standard was improper.

Assuming further litigation arises in this case, it would be an ideal time for Illinois to adopt the Dendrite test or reinforce that standard’s primacy within the state if it has only scant support.  The Cahill test isn’t bad, per se, but lacks the refinement and explicit First Amendment considerations found in Dendrite’s multifaceted evaluation of the subpoena and its consequences.

The scenario that everyone should fear is the Illinois court bucking the nation and fashioning its own standard, creating yet another test to be evaluated by courts that have yet to decide this issue on their own.  While the Illinois courts would be within their discretion to create such new tests, it is unnecessary; the current tests work fine, even if one is superior to the other.  For Illinois to create a new standard for the sake of demonstrating its own perceived legal significance – at least relative to New Jersey and Arizona – hundreds of truly innocent defendants would pay the cost of divining which standard should apply — a particularly cruel fate for the SLAPPed.

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