The opinion of the court was delivered by
In this interlocutory appeal, we review a trial court order that quashed a subpoena, served by plaintiffs on an Internet Service Provider (ISP), seeking information about the identity of one or more individuals who hacked into plaintiff Warren Hospital's intranet and circulated defamatory messages to the hospital's employees. We conclude that the trial judge erred in protecting the anonymity of the alleged hackers by strictly applying the procedures we outlined in Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756 (App.Div.2001).
Plaintiffs allege that, on August 17, 2008, John Doe One, an anonymous hacker using IP address 75.126.xx.yyy,
Plaintiffs claim these statements are defamatory or otherwise tortious. In seeking redress for the alleged injuries to their reputations, plaintiffs commenced this action on September 1, 2010, and amended their complaint two days later; the amended complaint alleges the utterance by anonymous speakers of many other defamatory or tortuous statements. To obtain information about the true identity of the fictitious defendants, plaintiffs served subpoenas on four ISPs.
Current counsel for one or more anonymous but unidentified respondents
The Internet's rapid, expansive and inexpensive means of communication permit anyone to "become a modern-day muckraker, exposing scandal and speaking out against fraud from the safety of [a] computer." Nathaniel Gleicher, Note, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Yale L.J. 320, 323 (2008); see also Too Much Media, LLC v. Hale, 413 N.J.Super. 135, 154, 993 A.2d 845 (App.Div.2010) (quoting Anne M. Macrander, Note, Bloggers as Newsmen: Expanding the Testimonial Privilege, 88 B.U. L.Rev. 1075, 1088 (2008) in referring to the solo blogger as the "lonely pamphleteer" of yesterday), aff'd as modified, 206 N.J. 209, 20 A.3d 364 (2011). But a click of the mouse may also instantaneously send defamatory messages to a wide audience, causing great harm to the reputation of others. To the extent these speakers choose to remain hidden behind their computers, difficulties are posed for injured individuals who seek redress. As a result, we have minimized "`the traditional reluctance'" for permitting filings against fictitious defendants and held that "`the traditional enforcement of strict compliance with service requirements should be tempered by the need to provide injured parties with a forum in which they may seek redress for grievances.'" Dendrite, supra, 342 N.J.Super. at 151, 775 A.2d 756 (quoting Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578 (N.D.Cal. 1999)).
This salutary flexibility, however, must be weighed against competing constitutional interests. The First Amendment extends its protection to speech that is uttered anonymously, Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559, 563 (1960); see also Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 197-99, 119 S.Ct. 636, 645-46, 142 L.Ed.2d 599, 613-14 (1999); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42, 115 S.Ct. 1511, 1516, 131 L.Ed.2d 426, 436 (1995), and when disseminated through the Internet, Reno v. Am. Civil Liberties Union, 521 U.S. 844, 885, 117 S.Ct. 2329, 2351, 138 L.Ed.2d 874, 906 (1997). And Article I, paragraph 6 of our state constitution is understood as providing an even broader right of free speech than recognized by the First Amendment by protecting speech "not only from abridgment by government, but also from unreasonably restrictive and oppressive conduct by private entities." N.J. Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 352, 650 A.2d 757 (1994), cert. denied, 516 U.S. 812, 116 S.Ct. 62, 133 L.Ed.2d 25 (1995); see also Dendrite, supra, 342 N.J.Super. at 149, 775 A.2d 756. Consequently, in offering a forum for those aggrieved by anonymous defamatory statements, particular care must be taken to prevent the suppression of criticism or the flow of legitimate speech. See New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701 (1964) (recognizing the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open"). In crafting an appropriate remedy, courts must sail between the Scylla of unmasking those who have said nothing actionable, leaving them vulnerable to powerful and vindictive plaintiffs with the ability to "seek revenge or retribution," Doe No. 1 v. Cahill, 884 A.2d 451, 457 (Del.2005), and, on the other hand, the Charybdis of permitting anonymity to become
In Dendrite, we adopted a four-part test for determining whether and to what extent a plaintiff may obtain discovery designed to ascertain the identity of persons posting messages on an ISP message board. 342 N.J.Super. at 140, 775 A.2d 756. The test for that circumstance was designed to ensure that the authorization of discovery into an anonymous speaker's identity "`will only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant pre-service and will prevent use of this method to harass or intimidate.'" Id. at 151, 775 A.2d 756 (quoting seescandy.com, supra, 185 F.R.D. at 578). Based on those circumstances, Dendrite requires that a plaintiff, who claims an injury based on an anonymous or pseudonymous statement on an ISP message board, must: (1) identify the fictitious defendant with "sufficient specificity" to allow for a determination as to whether the defendant "is a real person or entity" who may be sued; (2) demonstrate a "good-faith effort to comply with the requirements of service of process"; (3) present sufficient facts from which it may be concluded that the suit can withstand a motion to dismiss; and (4) provide "a request for discovery with the [c]ourt, along with a statement of reasons justifying the specific discovery requested as well as identification of a limited number of persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information about defendant that would make service of process possible." Dendrite, supra, 342 N.J.Super. at 151-52, 775 A.2d 756 (quoting seescandy.com, supra, 185 F.R.D. at 580).
The circumstances, here, however, are quite different from those that generated the test described above. Unlike Dendrite, we are not considering the anonymity of individuals posting statements on a public Internet message board.
In short, we are satisfied that plaintiffs are entitled to pursue discovery from Verizon or any other ISP to the extent the discovery might reasonably reveal the identity of those who used IP addresses 75.126.xx.yyy, 70.21.xxx.yy, or 72.94.xxx.yyy, or information reasonably designed to lead to other discoverable information. It is enough that plaintiffs have demonstrated (1) the speakers' unlawful or impermissible mode of communication, and (2) that the allegedly defamatory statements would survive a motion to dismiss.
As for the second aspect, we are satisfied that a defamation claim based on the August 17 and October 19, 2008 allegations would unquestionably survive a motion to dismiss. Plaintiffs assert that the
We recognize, as respondents urge, that the lengthy amended complaint contains claims of other allegedly tortious statements uttered in ways and in places that may bring a future application for discovery closer to the circumstances in Dendrite. It suffices to say for present purposes that plaintiffs are entitled to pursue discovery into the identities of John Does One and Two as a result of their August 17 and October 19, 2008 actions. Respondents are troubled that this discovery may provide insight into the identities of some of those who made other anonymous statements referred to in the amended complaint. We find that to be of little concern. If the discovery we now permit reveals that John Does One and Two also uttered other statements in less wrongful or even completely innocent ways — or the revelation of their true identities may lead to a discovery of the identities of other anonymous speakers — then that is a consequence of John Doe One and John Doe Two's alleged wrongdoing. Having made a showing we find sufficient for the discovery in question, plaintiffs should not be thwarted by the speculative consequence that other identities may be revealed.
We lastly observe that, contrary to other concerns urged by respondents, plaintiffs do not presently seek discovery as to speakers who uttered other statements referred to in the amended complaint. The record is not sufficiently developed to consider any other present or future discovery disputes. To the extent plaintiffs have sought relief beyond what we have permitted, our order granting leave to appeal was, in those other respects, improvidently granted. We hold only that plaintiffs are entitled to further pursue the Verizon subpoena in question.
The order under review is reversed and the matter remanded for further proceedings. We do not retain jurisdiction.