Legal Protections for Anonymous Speech in New York

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

New York law is unclear about what test a court should apply in deciding whether to permit disclosure of an anonymous Internet speaker's identity. Some courts have applied a low-burden, plaintiff-friendly standard derived from Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004), which was a copyright infringement case. A more recent case, Greenbaum v. Google, 845 N.Y.S. 2d 695 (N.Y. Sup. Ct. 2007), suggested that the high-burden "summary judgment plus balancing" standard from Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), should apply, although this reasoning was not necessary to its decision.

Below are summaries of the Greenbaum and Sony Music cases, as well as a defamation case in which a New York court applied the Sony Music standard, Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005).

The blog "Orthomom" is operated anonymously. Comments critical of Pamela Greenbaum, a local school board member, appeared on the blog in January 2007. Greenbaum objected to both primary blog content and a user comment. In February 2007, Greenbaum filed a motion for "pre-commencement discovery" in New York state court, seeking to compel Google to disclose identifying information about the operator of the blog and a user. (Google owns Blogger, which is the blog hosting service for the Orthomom blog.) After being notified of Greenbaum's discovery request, Orthomom intervened and objected to disclosure of her identity, invoking First Amendment protection for anonymous speech.

In October 2007, the court denied Greenbaum's request for pre-commencement discovery and dismissed the lawsuit. In its order, the court recognized that the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and that courts must balance this right with the plaintiff's right to pursue a valid cause of action for defamation. The court expressed a willingness to follow the standard set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), in which a New Jersey appellate court held that a plaintiff must produce evidence on each element of its claim and that the court must independently balance the need for disclosure against the First Amendment values at stake. The Greenbaum court indicated that it was not necessary to decide the precise standard to be applied, however, because "the statements on which [Greenbaum] seeks to base her defamation claim [were] plainly inactionable as a matter of law."

Thus, Greenbaum provides some support for applying the Dendrite test in New York, but it is not conclusive.

A number of anonymous internet users used a peer-to-peer network to exchange copyrighted music. Sony and other recording companies who owned the copyrights sued the anonymous internet users for copyright infringement and subpoenaed their ISP, Cablevision, for information that would reveal the defendants' identities. Cablevision notified the anonymous defendants, and several of them filed motions to quash.

In deciding on the motion to quash, the court held that peer-to-peer file sharing "qualifies as speech, but only to a degree." Therefore, the court determined that anonymous file-sharing activity should receive some First Amendment protection, but only to a limited degree. The court identified five factors for determining whether to allow disclosure of an anonymous Internet user's identity: (1) whether there is "a concrete showing of a prima facie claim of actionable harm"; (2) the specificity of the discovery request; (3) the absence of alternative means to gain the information; (4) whether the information subpoenaed is central to the plaintiff's claim; and (5) the anonymous party's expectation of privacy. The court found all five factors here to weigh towards the plaintiffs, and thus denied the defendants' motions to quash.

It is not entirely clear whether "a concrete showing of a prima facie claim of actionable harm" requires a plaintiff to put forth evidence, or whether a plaintiff can satisfy it with allegations alone. At times the court seems to suggest that allegations are enough, such as in the paragraph at page 9 of the linked opinion that begins, "Plaintiffs have alleged ownership of the copyrights ...." However, in the next paragraph, the court mentions the plaintiff's evidence, implying an evidentiary component to the "prima facie" inquiry. The "concrete showing" language itself also suggests an evidentiary requirement.

Later courts have interpreted Sony Music in different ways. The Greenbaum court described Sony Music as a "lesser standard" (as compared to Dendrite), and the general trend is for courts to consider Sony Music's standard to be plaintiff-friendly, with the "prima facie" requirement satisfied with little or no evidence. On the other hand, one court has characterized Sony Music as applying a test comparable to the summary judgment standard from Doe v. Cahill, 884 A.2d 451 (Del. 2005). See Best Western International v. Doe, 2006 WL 2091695 (D. Ariz. 2006).

Note that, although Sony Music is a copyright infringement case, courts have applied its standard in other types of cases. For example, a federal court in New York applied the Sony Music test in General Board of Global Ministries of the United Methodist Church v. Cablevision, 2004 WL 2904405 (E.D.N.Y. 2006), which involved anonymous "hacking" of a computer system. A New York state court applied it to a defamation case in Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005), which is discussed below.

A staff member of the Public Relations Society of America (PRSA) sent an anonymous email to PRSA's board of directors that was highly critical of the board and its executive director, Catherine Bolton. Bolton and PRSA brought a special proceeding in New York state court seeking "pre-action" discovery from Road Runner, the anonymous emailer's ISP. The anonymous defendant moved to intervene in the action in and to dismiss the petition for discovery.

In deciding whether to allow PRSA and Bolton to compel disclosure of the emailer's identity from Road Runner, the court adopted the Sony Music standard (discussed above). The court found all factors weighed in favor of granting disclosure, noting in particular that the defendant had no legitimate expectation of privacy in this situation. The court applied Sony Music's "prima facie" standard as being roughly equivalent to a "motion to dismiss" standard, which looks at whether the allegations in the complaint are sufficient, without requiring any evidence.

This case is significant because it applied a standard developed in the copyright infringement context to a defamation case.