Legal Protections for Anonymous Speech in New Jersey

Note: This page covers information specific to New Jersey. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

New Jersey courts apply a high-burden test before permitting disclosure of an anonymous Internet speaker's identity. Among other things, the courts require a plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, and assuming the plaintiff can meet this burden, the courts apply a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

Two New Jersey cases applying this standard are discussed below:

Dendrite International, a company that developed and serviced software for the pharmaceutical industry, brought a "John Doe" lawsuit in New Jersey state court against fourteen unnamed defendants, complaining about critical messages that they posted on Yahoo! message boards under pseudonyms. Dendrite claimed the messages were defamatory and revealed company trade secrets and sought permission from the court to take discovery from Yahoo regarding the identity of certain of the anonymous posters. The trial court allowed Dendrite to conduct limited discovery to find out the identities of John Does 1 and 2, who were current or former employees of the company, but rejected its request for an order compelling Yahoo to identify John Doe 3.

Dendrite appealed, and the New Jersey appellate court affirmed the lower court's ruling. In its opinion, the court set out guidelines for lower courts to follow when faced with a request for an order compelling an ISP to reveal the identity of an anonymous Internet poster. The court developed a five-part test: (1) the plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond; (2) the plaintiff must identify the exact 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 court must balance the strength of the speaker's claim to First Amendment protection against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

Applying the standard to the facts of the case, the appellate court held that Dendrite had failed to produce sufficient evidence for each element of its defamation claim. Specifically, the court held that Dendrite had not produced sufficient evidence of harm resulting from John Doe 3's statements.

An unknown internet user posted information on a Yahoo! message board about the company Immunomedics under the pseudonym moonshine_fr. Immunomedics claimed that moonshine_fr's postings suggested that she was a company employee, and therefore her postings breached the confidentiality agreement she had signed with the company. Immunomedics sued her in a "Jane Doe" suit and subpoenaed Yahoo! for information regarding moonshine_fr's identity. When informed of the subpoena, moonshine_fr filed a motion to quash it. The trial court denied the motion, and she appealed.

The appellate court applied the test created in Dendrite. The court determined that Immunomedics had produced sufficient evidence to support its claim that moonshine_fr was an employee and was thus subject to the company's confidentiality agreement. Without extensive analysis, the court also concluded that Immunomedics's need to identify moonshine_fr in order to enforce its confidentiality agreement outweighed her right to speak anonymously. Therefore, it affirmed the trial court's ruling allowing Immunomedics to subpoena Yahoo! for her identifying information.

Note: Another New Jersey court rejected an attempt to obtain information about the identity of anonymous Internet speakers in Donato v. Moldow. The court applied the Dendrite standard.