‘Anti-Brennan’ Case Raises Legal Issues On Blog Postings

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By: Steve Yahn

In what could become a landmark legal case for newspapers and Internet Service Providers across the country, nj.com has been sued for violating its privacy agreement and failure to comply with standards established by New Jersey state law — standards that are among the most specific and far-reaching in the nation.

Chad E. Milton, one of America’s top media liability experts, told me in late-February, “This type of circumstance is occurring with increasing frequency, and I believe it will become a major issue for publishers who permit anonymous postings.”

On the surface, the facts in the case are straightforward, albeit filled with much small-town intrigue.

“AntiBrennan,” as he branded himself, rained down such pejoratives as “Billy the Baby” and “paranoid-delusional, overpaid, underworked sicko” on his litigious arch-enemy, William J. Brennan, through much of 2005 in anonymous postings at the Teaneck board of nj.com. The site is a joint venture of 14 newspapers, including The Star-Ledger of Newark. Brennan, employed by the Teaneck Fire Department, was a frequent poster on nj.com’s Teaneck message board, where he often lodged complaints against the Teaneck Council, including a councilman named Michael Gallucci.

Until early last year, AntiBrennan’s true identity was a mystery. But the fireman’s anger finally led him to subpoena records from nj.com concerning AntiBrennan, and, according to Brennan’s attorney, nj.com readily replied. Now, AntiBrennan — who turned out to be Councilman Gallucci — claims (in a legal action filed in February) that this outing was a clear violation of the site’s users’ agreement.

How did this happen? Brennan’s attorney, Jonathan Nirenberg of Resnick, Nirenberg and Siegler in East Hanover, N.J., said he “struck gold” because Gallucci’s IP address included his name. This led Brennan to almost immediately post notice on the Teaneck board identifying “AntiBrennan” as Gallucci, and setting in motion a strong local reaction. Newspapers suggested that Gallucci’s posted comments blaming the Teaneck fire department for the deaths of four children was the prime cause for the backlash.

Gallucci now claims that after quickly giving up his seat on the council, he was forced to move his family out of town.

His case — which is being handled by the Washington, D.C.-based Public Citizen Litigation Group, a public interest legal organization co-founded by Ralph Nader — rests heavily on a precedent-setting legal decision. In Dendrite International v. Doe, three major precepts were handed down that together have led to what is commonly known among Internet free-speech lawyers as the “Balance Test.”

It was ruled that there are “higher standards” that must be met before an ISP can release the identity of an anonymous poster: A plaintiff who seeks to obtain the identity of an anonymous poster must give that poster notice — via the message board — so that the person or group has the opportunity to oppose the disclosure. The plaintiff must specify which anonymous statements were actionable, and provide evidence to make a prima facie case. A judge then considers the strength of the case and weighs the need to reveal the poster’s identity against the First Amendment right of anonymous free speech.

Gallucci’s suit argues that nj.com failed to comply with any of these standards. Nj.com’s general counsel, Sabin, Bermant and Gould LLP of New York City, declined to comment to E&P beyond issuing a statement saying, “We believe that the complaint does not accurately reflect the law, and we are confident our client will prevail.”

Chad Milton, senior vice president/ national media liability practice leader for Marsh Inc. in Kansas City, notes that Section 230 of the Communications Decency Act provides immunity, most courts now agree, for Web site publishers or ISPs that publish third-party material. “The only person left to sue,” adds Milton, “is the actual poster of the material that is allegedly defamatory, and when the poster is anonymous, the claimant needs to take steps to know who to sue. Since the Web site operator or ISP likely has that information, the claimant is compelled to seek the information by subpoena.”

Bruce E.H. Johnson, a leading First Amendment attorney and partner at Davis Wright Tremaine LLP in Seattle, contends that Gallucci should have sued Brennan, not nj.com, and adds: “Nj.com, like any witness, cannot unilaterally ignore a court subpoena which has the force of law. Nj.com’s privacy policies allowed it to disclose information ‘for any lawful business purpose’ and ‘when we are legally required to cooperate with … legal proceedings.'”

Taking a counter view, Jennifer Soble, lead attorney for Public Citizen on behalf of Gallucci, argues: “Newspapers routinely fight to protect the identities of their confidential sources in the face of subpoenas. Like a source, Mr. Gallucci was promised that his identity would remain confidential.” Stay tuned.

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