In Blog, Privacy and Internet Law

Our topic for this blog post regards three important decisions that were recently issued by New Jersey Courts that have significant implications for future privacy related litigation.

First, in Trawinski v. Doe, an anonymous blogger using the name “EPlifer2” was sued for making allegedly defamatory comments on against Diane Trawinski, the wife of a Borough Councilman.  In 2012, to identify the poster of the comments, Ms. Trawinski subpoenaed for the “name, address and/or email address of the person or persons registered to use [the screen name] EPLIFER2 on the forums.”  After the trial court ordered to provide the requested records, the publisher of appealed the Court’s decision.  The result of the appeal was a reversal of the trial court’s decision on the basis that Ms. Trawinski failed to follow the procedures set forth by Dendrite International v. Joe Doe, which in part, requires that an individual seeking to identify anonymous posters make a prima facie showing that the statements at issue are defamatory.  Importantly, since “expressions that clearly reflect opinion on matters of public concern are not actionable,” the Appellate Division ruled that the statements at issue did not constitute a prima facie case for defamation.  This case is important because for the first time in a New Jersey published decision, the Court found that the operator of website had the standing to protect its users’ first amendment rights and contest a subpoena issued by a Plaintiff seeking to identify an anonymous poster to its website.

Second, in W.P v. Princeton, a student sought to anonymously sue Princeton University “to avoid social stigma and emotional distress relating to his mental health.”  In its Letter Order addressing whether the student could proceed anonymously, the District Court of New Jersey noted that the “Federal Rule of Civil Procedure 10(a) requires parties to a lawsuit to identify themselves in their respective pleadings.” According to the Court, “Rule 10(a) protects the public’s legitimate interest in knowing all of the facts involved in a case, including the identities of the parties.”  Nevertheless, “in exceptional cases, courts have allowed a party to proceed anonymously.”  The factors that the Court considers when making decisions on whether a Plaintiff can proceed anonymously include the following:

  1. Extent to which the identity of the litigant has been kept confidential
  2. The bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases
  3. Magnitude of public interest in maintaining confidentiality of litigant’s identity
  4. Whether, because of purely legal nature of issues presented or otherwise, there is a atypically weak public interest in knowing litigant’s identity
  5. Undersirability of an outcome adverse to pseudonymous party and attributable to his refusal to pursue case at price of being publically identiifed; and
  6. Whether party seeking to sue pseudonymously has illegimate ulterior motives.

Siding with Princeton, the Court found that, “the plaintiff voluntarily chose to pursue action through the public judicial system, and therefore, must be willing to face the consequences of having a public proceeding.” As a result, if the Plaintiff were to pursue his case, he would be forced to reveal his identity. This case is important because it sets a threshold that Plaintiffs must meet if they want to pursue litigation anonymously.

Finally, in NuWave Investment Corp. v. Hyman Deck & Co., the New Jersey Supreme Court found that Plaintiffs in defamatory action cases are not entitled to both actual and presumed damages.  In the trial court, NuWave Investment Corp. was “awarded $1.2 Million in presumed damages and $1.4 Million in actual damages in the suit which was lodged by the managers of the hedge fund NuWave Investment Corp” who claimed that “defamatory statements about them [were produced] in a background report by another defendant, BackTrack Reports Inc. on behalf of prospective investors.”  After Hyman Deck & Co. appealed the damage award, the New Jersey Supreme Court made it clear that, “presumed damages are a means of “vindicating” a plaintiff’s character when there is no proof that he or she suffered actual damages as a result of a defamatory statement.” Moreover, the court added that “presumed damages is a procedural device that allows a defamation case to go to the jury in the absence of actual damages” and that, “presumed damages may not be awarded in any higher amount [in relation to actual damages].”  This case is important because it clarifies the limitations on damages in defamation awards, an issue of importance as a result of the increased prevalence of defamatory cases related to anonymous commenters on the Internet where damages are often difficult to quantify. (See Trawinski v. Doe).

While seemingly unrelated, these three recently decided cases highlight how privacy related issues are becoming increasingly prevalent in New Jersey’s litigation dockets.

About the author: Andrew P. Bolson, Esq. is an attorney with Meyerson, Fox, Mancinelli & Conte, P.A. in Montvale, New Jersey. Andrew’s practice focuses on commercial and estate litigation, business law, real estate law, estate planning and privacy and Internet law.