Summary Judgment Standard Followed By Balancing
This test provides a higher level of protection to anonymous online speakers, in that it requires a court to first apply the summary judgment standard of Doe v. Cahill and then, if the plaintiff is able to meet its burden, to balance the strength of the plaintiff's prima facie case against the poster's interest in remaining anonymous.
A New Jersey appellate court applied this hybrid test in Dendrite International, Inc. v. Doe No. 3. The court set forth five guidelines for judges to follow in deciding whether to compel disclosure of an anonymous poster's identity: (1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identity the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."
The so-called Dendrite standard was adopted by the Arizona Supreme Court in Mobilisa, Inc. v. Doe, and most recently, by Maryland's highest court in Independent Newspapers v. Brodie. After reviewing the treatment of anonymous online speech by other state and federal courts, the Maryland court concluded that "a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test—such as the standard set forth in Dendrite—most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks."
Read more about this topic: Doe Subpoena, Legal Standards
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