Plaintiffs seeking pre-suit discovery to unmask the anonymous online posters who allegedly libeled them must first state facts that support a defamation claim, the first district held.

A divided panel of the Illinois Appellate Court's first district has reversed a circuit judge's ruling requiring disclosure of the identity of an individual who posted anonymous and allegedly defamatory comments on a newspaper's website. The case is Stone v Paddock Publications, Inc, 2011 IL App (1st) 093386, released November 17, 2011.

Snark

Lisa Stone, the petitioner and next friend for her minor son, Jed Stone, was a candidate for village trustee in a suburban election. In April, 2009, the respondent's Daily Herald newspaper published on its website a letter from a reader in support of Stone's campaign and then, a few days later, an article about the election. Like many or most online publications, the newspaper permitted readers to post comments anonymously, using fictitious names.

An individual with the user name "Hipcheck16" posted comments in response to the letter and article that might best be described as "snark," including, in particular, a comment directed toward Stone's son that Stone contended constituted constitutionally unprotected defamation per se.

Stone filed an action against the newspaper's owner under SCR 224, "Discovery Before Suit to Identify Responsible Persons and Entities," seeking to discover "Hipcheck16's" identity. In response to Stone's discovery requests, the publication disclosed "Hipcheck16's" Internet Protocol (IP) and e-mail addresses but not the individual's name. Having also determined that "Hipcheck16" was a Comcast Cable subscriber, Stone moved for an order compelling Comcast to respond to a subpoena and provide the identity of the subscriber to that IP address.

As John Doe, the IP address user moved to quash the subpoena. The trial judge denied the motion and ordered Comcast to produce the requested information for an in camera review. Comcast complied, whereupon Doe filed a motion opposing the disclosure of his identity. After briefing and hearing, the trial court ordered that John Doe's identity should be disclosed. Doe appealed, and the trial court stayed the enforcement of its order pending the appeal's resolution.

SCR 224 permits an independent action to discover the identity of one who may be responsible in damages. The rule requires a verified petition setting forth why the proposed discovery is necessary and the nature of the discovery sought.

The appellate panel found that the third district had, in a matter decided after the trial court had entered its order, announced a standard that correctly balanced the rights of injured plaintiffs seeking redress for unprotected defamatory language and those exercising their constitutional right to speak anonymously. Maxon v Ottawa Publishing Co, 402 Ill App 3d 704, 929 NE2d 666 (3d D 2010).

In that matter, which likewise was a SCR 224 petition based on a potential cause of action for defamation, the court held that a trial court must ensure, among other matters, that the petition states with particularity facts that would demonstrate a cause of action for defamation. The Maxon court also said that section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615) provides the correct mechanism for determining whether a SCR 224 petition states a cause of action.

"[A]ppropriate[] balance[]"

The Stone court emphasized that the burden of showing that the requested discovery is necessary remains on the petitioner at all times. Unidentified individuals such as John Doe, the court said, are not required to file a section 2-615 motion; rather, petitioners retain the burden of showing that they can allege facts that support a cause of action, whether speech-based or not.

Turning to the comment in question and the law of defamation, the court held that Stone's allegations did not satisfy Maxon's requirements. Analyzing the comment's phrasing, the dialogue, and other context, no reasonable person, the court found, would find that the remark presented either a fact or a factual assertion.

Additionally, the court found that the comment was subject to innocent construction. Commenting that upholding the trial court's order would open the door for "fishing expeditions" that would have a chilling effect on anonymous free speech, the court upheld the standards set forth in Maxon. One justice concurred in the result but disagreed with the majority's analysis, opining that the appropriate SCR 224 standard is probable cause.

Springfield lawyer Esther Seitz, an associate attorney with Donald Craven, the general counsel for the Illinois Press Association, who wasn't involved in the matter, said the case "injects some much-needed clarification into the pre-suit discovery procedure under Rule 224. It is now clear that persons seeking to reveal identities of anonymous posters must plead a legitimate cause of action, sufficient to survive a motion to dismiss."

Seitz said she agreed with the court's requiring the complaint to satisfy the basic elements of a claim for defamation before unmasking the user's identity. "The ruling appropriately balances a person's right to seek redress for actionable claims against a speaker's right to remain anonymous, while preserving limited judicial resources."

For a discussion of current issues relating to online anonymity and links to other publications' policies, see http://abovethelaw.com/2011/12/a-note-to-our-readers-about-comments. See also Sarah A. Smith's article, Who Posted That? Anonymous Online Speech and the First Amendment in the April 2011 IBJ, available in the archive at www.isba.org.ibj.