Legal Protections for Anonymous Speech in Pennsylvania

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

Pennsylvania law is not entirely clear on what standard the courts will apply before permitting disclosure of an anonymous Internet speaker's identity. The most recent case on the subject, Reunion Industries v. Doe 1, 2007 WL 1453491 (Pa. Com. Pl. 2007), applied a high-burden "summary judgment" standard. However, courts in other cases have imposed less protective standards.

Several anonymous Internet users posted negative comments about the company Reunion Industries on a Yahoo! Finance message board. Reunion Industries sued the anonymous posters for commercial disparagement and found out from Yahoo! that AOL was the ISP for one of the defendants ("Doe 1"). Reunion Industries moved for a court order compelling AOL to reveal Doe 1's identity, and Doe 1 moved for a protective order that would prevent AOL from revealing the information.

The court applied a summary judgment standard, similar to that in Doe v. Cahill, 884 A.2d 451 (Del. 2005). Applying a summary judgment standard means that the plaintiff must bring forward sufficient evidence for each element of his claim. As in Cahill, however, the plaintiff in this case was not required to meet that standard on elements of the claim that were entirely within the defendant's control, specifically those involving the defendant's state of mind.

In this case, the court found that plaintiff had not put forward enough evidence to compel disclosure from AOL.

Putting this case in the context of Pennsylvania law generally, there are two additional points worth noting:

• The court explicitly adopted a Cahill-style summary judgment test, but then stated that the plaintiff may be able to compel discovery eventually if it makes a "prima facie" showing of its claim. This suggests that, for this particular court, a summary judgment standard and a prima facie standard mean the same thing, and both represent a high-burden standard requiring the plaintiff to put forward substantial evidence. This is different from the approach used by the Court of Common Pleas for Lackawanna County in Polito v. AOL, 2004 WL 3768897 (Pa. Com. Pl. 2004) discussed below, which appears to use "prima facie" to indicate a standard that the plaintiff could satisfy through allegations alone.

• The court cited one of its earlier decisions, Melvin v. Doe, 2000 WL 33311704 (Pa. Com. Pl. 2000) as adopting a summary judgment standard. However, the Reunion Industries decision is more explicit about applying a summary judgment standard than is Melvin, which does not use the actual words "summary judgment." Further, the Court of Common Pleas' decision in Melvin was overruled in a complex series of cases that did not definitively answer what standard should apply to online anonymity cases. Therefore, Reunion Industries is stronger support than Melvin for an argument that Pennsylvania courts should apply the protective summary judgment standard.

One or more anonymous Internet users sent Michele Polito a series of upsetting emails and instant messages from various AOL accounts. Ultimately seeking to sue the anonymous Internet users, Ms. Polito first filed suit against AOL to compel disclosure of the identities of the subscribers who were harassing her.

The court announced a four-part test for deciding whether AOL was required to disclose its subscribers' identities. Under this standard, the plaintiff must establish that (1) she has a "prima facie" claim under Pennsylvania law against the anonymous parties; (2) the information requested is directly relevant and necessary to her claim; (3) she is seeking the information in good faith; and (4) she cannot discover the anonymous parties' identities otherwise. The court found her to have satisfied all the criteria, and thus ordered AOL to disclose the subscribers' identities.

In this opinion, the court used the term "prima facie" to mean that the plaintiff "satisfactorily states a cognizable claim under Pennsylvania law entitling her to some form of civil or criminal redress for actionable speech of the unknown declarant(s)." This strongly suggests that the prima facie standard here is one that the plaintiff can satisfy through allegations alone. It is worth noting, however, that the court did examine some evidence that the plaintiff had put forward.

Further, the court found that Polito had satisfied the prima facie test even though she did "not assert a particular cause of action against the anonymous subscribers." In the court's view, it was enough that the emails and messages she received "arguably constitute harassment or stalking by communication under Pennsylvania law," and also that she had a "conceivable claim" of intentional infliction of emotional distress (despite the fact that "the Supreme Court of Pennsylvania has never expressly recognized a cause of action" for this claim).

As noted, the Polito court's interpretation of the term "prima facie" is different from the Reunion Industries court's interpretation. This suggests that Pennsylvania law in this area is not settled, and a court's invocation of a prima facie standard does not clearly indicate whether it is applying a high-burden or low-burden test.

In this case, the court used Pennsylvania's own discovery rules to decide on a subpoena directed at an ISP and superficially rejected the Cahill and Dendrite standards. However, because of the case's highly unusual factual background and procedural posture, it is hard to draw any conclusion about the standard it uses. A brief summary is below.

The company JPA Development was involved in litigation, and the law firm Klehr Harrison Harvey Branzburg & Ellers represented their opponent. JPA's owner, Jerry Pantelidis, and its employees created and posted content on two websites that accused Klehr Harrison and its attorneys of fraud. Klehr Harrison sued JPA, Pantelidis, and their ISPs for defamation and other claims. In this suit, Klehr Harrison served discovery requests on JPA, Pantelidis and the ISPs to discover the identities of posters on the website, which the court noted was most likely Pantelidis or people acting at his direction. JPA and Pantelidis responded with a motion for protective order to prevent this discovery. The court denied that motion and offered this opinion to the superior court handling the appeal, urging it to affirm its ruling.

In deciding on the discovery requests, the court declined to use the tests from either Cahill or Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and instead relied on a Pennsylvania civil procedure law forbidding discovery that (1) is sought in bad faith, (2) would cause unreasonable annoyance, embarrassment, oppression, burden, or expense to any party, or (3) is beyond the scope of discovery. The court found that the plaintiffs had satisfied this standard. While such "good faith" standards generally do not require the court to look at the plaintiff's evidence, in this case the court had already taken evidence and used it to reach its decision.