Indiana is the latest state to join a growing trend among state courts across the country allowing plaintiffs to subpoena the identifying information of anonymous website posters in online defamation lawsuits:
In rulings this week and last week, Marion Superior Court Judge S.K. Reid became the first judge in Indiana to rule on whether the state journalism shield law protects media outlets from being forced to disclose names of anonymous posters on their websites or other identifying information about those posters, said Kevin Betz, an attorney for Jeffrey Miller, former chief executive of Junior Achievement of Central Indiana.
The rulings came in a defamation lawsuit Miller filed last year. He is seeking to broaden the list of defendants in his case to include people who criticized him anonymously last year on websites run by The Indianapolis Star, Indianapolis Business Journal and WRTV (Channel 6).
Once an online publication discloses identifying information about anonymous users, such as the user’s internet protocol (IP) address, plaintiffs must typically subpoena the relevant internet service provider to reveal the identity of the subscriber who was assigned that address. ISPs generally respond by citing the Electronic Communications Privacy Act and refusing to provide user information without a court order supporting the subpoena.
States are still applying varying standards in deciding whether to grant such a court order, many courts, including New York, New Jersey and California utilize a version of the Dendrite standard, analyzing (1) the plaintiff’s ability to establish a prima facie claim; (2) the specificity of the plaintiff’s discovery request; (3) the availability of alternative means to obtain the subpoenaed information; (4) the central need for discovery to advance the plaintiff’s claim; and (5) the defendants’ expectation of privacy.
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