MEMORANDUM OPINION
SLIGHTS, J.
I.
In a case of first impression in Delaware, the Court must balance the First Amendment protection of anonymous speech against the right of a putative victim of defamation to discover the identity of the anonymous speaker. Pending before the Court is a motion for protective order in which Defendant, John Doe No. 1, seeks an order preventing Comcast Cable Communications, Inc. (“Comcast”) from disclosing his identity to the Plaintiffs, Patrick Cahill and his wife, Julia (the “Ca-hills”). According to the Cahills, John Doe No. 1 is an anonymous user of an internet “blog” who, along with Defendants, John Doe Nos. 2, 3 and 4, posted defamatory statements about the Cahills on the blog.
On December 22, 2004, the Court entered an
ex parte
Order requiring Comcast to disclose to the Cahills the identities of John Doe Nos. 1, 2, 3, and 4 so that the Cahills could name them as defendants in this defamation action and properly serve their complaint. As directed by the Court, prior to disclosing the information, Com-cast notified each of the John Doe defendants of the Court’s Order to enable them to seek appropriate protective relief from the Court.
Only John Doe No. 1 has sought such relief.
To resolve this motion, the Court must first identify the applicable standard of review. Specifically, the Court must determine the appropriate burden to place upon a defamation plaintiff who seeks to compel a third party to disclose the identity of an anonymous speaker. Plaintiffs showing of need for the identity of the speaker and of the
bona fides of
his defamation claim must be sufficient to overcome the speaker’s First Amendment right to remain anonymous. John Doe No. 1 urges the Court to adopt a standard that would require the Cahills to establish a
prima facie
case for defamation against him before the Court orders Comcast to disclose his identity.
Not surprisingly, he contends that the Cahills have not sustained this burden. In response, the Ca-hills argue that the Court should impose a less burdensome standard that would require them simply to demonstrate that they have a “good faith basis” to contend
that they have been the victims of defamation. Not surprisingly, the Cahills contend that they have met this burden.
For the reasons that follow, the Court finds that the standard proffered by the Cahills is the more appropriate standard under the circumstances presented here because it allows for a more accurate weighing of the First Amendment right of the anonymous speaker against the right of a defamation plaintiff to seek redress for reputational injury. Additionally, the Court is satisfied that the Cahills have met their burden in this case in that they have demonstrated a good faith basis to contend that they have been the victims of defamation at the hands (literally by keystroke) of John Doe No. 1. Accordingly, the Cahills’ subpoena directed to Comcast is appropriate and the motion for protective order is DENIED.
II.
Plaintiff, Patrick Cahill, serves as a member of the Smyrna Town Council. This is an elected position for which Mr. Cahill must campaign for votes. Apparently, at some point in 2004 (or before), Councilman Cahill began to disagree publicly with the policies of Smyrna’s Mayor, Mark Schaeffer.
A personal dispute between the Cahills and Mayor Schaeffer also became the subject of public discussion.
This background is important to place the blog statements at issue in context.
Independent Newspapers, Inc. is the host of the “Smyrna/Clayton Issues Blog,” an internet bulletin board that invites online discussion of issues facing the Smyrna/Clayton area, including political issues.
In September of 2004, John Doe Nos. 1 through 4 posted messages on this blog under the pseudonyms “Proud Citizen,” “Screwed U All,” “Saw It All,” and “Me too,” respectively. Specifically, on September 18, 2004, John Doe No. 1 posted the following message:
If only Councilman Cahill was able to display the same leadership skills, energy and enthusiasm toward the revitalization and growth of the fine town of Smyrna as Mayor Schaeffer has demonstrated! While Mayor Schaeffer has made great strides toward improving the livelihood of Smyrna’s citizens, Ca-hill has devoted all of his energy to being a divisive impediment to any kind of cooperative movement. Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration. Cahill is a prime example of failed leadership— his eventual ousting is exactly what Smyrna needs in order to move forward and establish a community that is able to thrive on economic stability and common pride in its town.
On the following day, John Doe No. 1 posted another message. It read:
Gahill is as paranoid as everyone in town thinks he is. The mayor needs support from his citizens and protections from unfounded attacks....
In addition to John Doe No. l’s postings, John Doe Nos. 2, 3, and 4 also weighed in on the Cahill/Schaeffer dispute. On October 1, 2004, John Doe No. 2 wrote:
I have to say that I would be embarrassed to be associated with the scum of
the earth Pat and Julia [Cahill]. Everybody in town talks about how freaky they are. Not to mention the fact that Julia has screwed ... or at least tried to screw half the people in town! That just goes to show that she’s nothing but a “bottom of the barrel scum sucking whore”!! While I am thinking about it, why don’t Pat and Julia take their boat and shove it up their asses ... I hear Pat likes that kind of stuff. Isn’t that right Doug? ? ? ? ? ?
I hope Mayor Schafer [sic] installs 50 cameras ... he’ll need them to keep himself and his family safe from the crazy ass freaks like you and the Cahills! Oh yeah, please tell me that it was a joke in the “S[tate] News” about the Schafers [sic] wanting to look at Cahill’s wife ... WHO IN THE HELL WOULD WANT TO LOOK AT THAT FAT PIECE OF SHIT? Come on, I’d have a better chance of getting aroused watching [a government official].
Keep guessing Cahill!! You could never figure it out if you tried!! I love making you look like an even bigger ass than people believe you are. As for the intelligence of your wife ..., she married you that speaks for itself!! It’s fun how distorted your perception of reality is, but then again you are Pat the Rat Cahill! Oh yeah, it’s obvious “sparks” is your fat ass wife!!! Speaking of which, do you know where your wife is? She better be careful because the police are really cracking down on prostitutes!!
On the following day, John Doe No. 2
posted another message. It read:
Ha Ha Pat Cahill!! Guess again! The fact that you think I am one of the Schafers [sic] makes it obvious that you really don’t have a clue ... if that weren’t already obvious enough! The fact is the truth hurts and it’s about time you came to grips with reality and face the fact that not only I, but everyone else is Smyrna knows what a low life you and your wife are. I LOVE the fact that this has irritated you so much. That’s obvious, due to the fact you actually spend time trying to rationalize how your wife might be as “respectable” as you would like her to be! I hope you don’t lose any more sleep.
John Doe Nos. 3 and 4 followed by posting these messages:
John Doe No. 3:
Yeah! You’re right about Cahill’s wife. Word is she left him ... couldn’t have sex because he has Hepititis [sic] C. Now she’s living in Dover with her BIG blond girlfriend and they both go out to the bars most nights trying to pick up guys. I saw her the [sic] out the other night trying to pick up some guys. The guy was so drink [sic] he didn’t even know how ... looking she was and they left together.
John Doe No. 4:
I saw Pat Cahill in the liquor store at Spruance City buying his nightly bottle so he could get soused. Guess he has nothing else to do since his wife left him. Guess no one wants to be associated with him. I didn’t know he was ill tho [sic] I wondered why he wouldn’t join the ambulance service when we asked him since he was SUPPOSED to be a paramedic. WOW! I wouldn’t want to be in Town Hall with him. Isn’t heititis [sic] C deadly?
Citing these blog postings, the Cahills filed a complaint in this Court against John Does Nos. 1, 2, 3 and 4 alleging,
inter
alia,
defamation.
Since each of the postings were made under pseudonyms, the Cahills were unable to determine the true identity of the speakers. This left them without defendants upon whom to serve their complaint.
Through counsel, the Cahills discovered that Independent Newspapers, Inc. kept track of the internet protocol addresses (“IP address”) of everyone who posted messages on the blog. IP addresses are owned by internet service providers (“ISP”) who then assign the IP addresses to subscribers when they go “online.” The IP addresses are assigned to only one subscriber at a time.
Therefore, if the ISP knows the time and date of the postings made from a specific IP address, it can then determine the identity of the subscriber.
Pursuant to Delaware Superior Court Civil Rule 30, the Cahills requested leave of Court to conduct depositions of Independent Newspapers, Inc. prior to service of process in order to determine the IP addresses of the anonymous defendants.
The motion was granted on November 23, 2004.
Through these depositions, the Cahills discovered that the IP addresses they were looking for all belonged to Com-cast, an ISP. Armed with the IP addresses of John Doe Nos. 1 through 4, the Cahills served subpoenas
duces tecum
upon Com-cast seeking documents that would reflect the identify of each of the John Doe defendants. Pursuant- to 47 U.S.C. § 551(c)(2)(B), Comcast notified John Doe Nos. 1 through 4 of the subpoenas prior to making any response to the Cahills. John Doe No. 1 has now filed a motion for protective order to prevent Comcast from releasing his identity to the Cahills.
The Court heard oral argument on January 7, 2005. At the conclusion of the hearing, the Court requested supplemental briefing. Having received the parties’ supplemental briefing, the matter is ripe for decision.
III.
John Doe No. 1 contends that an order compelling Comcast to release his identity to the Cahills would violate his First Amendment right to anonymous speech. He argues that before the Court strips him of his First Amendment protection, it should first require the Cahills to meet the burden articulated in
Dendrite International, Inc. v. Doe.
In
Dendrite,
the court required the plaintiff to make a
prima facie
showing of defamation before it would compel an ISP to identify an anonymous user of an internet blog. Because the Cahills have not met this burden, John Doe No. 1 argues that his First Amendment right to anonymity must be protected and the subpoenas to Comcast must be quashed.
The Cahills urge the Court to reject the
Dendrite
standard in favor of a more le
nient standard that would allow them access to John Doe No. l’s identity upon a “good faith” showing of defamation.
The Cahills contend that forcing them to establish a
prima facie
case of defamation at this very early stage of the litigation requires too much and would be inconsistent with Delaware’s long-standing recognition of the right of her citizens to seek redress in the courts for damage to reputation. Finally, the Cahills argue that they have made a “good faith” showing of defamation against John Doe No. 1 and that his identity, therefore, should be disclosed so that they can serve their complaint and move forward with this litigation.
The parties’ contentions present two issues for the Court to decide: (1) what is the appropriate standard by which the Court should determine whether to allow disclosure of an anonymous internet user’s identity when the user is sued for making defamatory statements over the internet; and (2) whether the Cahills have met that standard.
IV.
A. Setting The Appropriate Standard
Before establishing a legal standard by which the entitlement to a remedy will be measured, it is helpful first to identify specifically the interests that are meant to be advanced or protected by that standard. In this case, the competing interests at work are the First Amendment right to engage in anonymous speech and the common law right to be protected from vexatious, defamatory speech. The Court will consider these interests
seriatim
before addressing the appropriate standard of review pursuant to which a motion such as this should be considered.
I. The First Amendment Right to Anonymous Speech
The right of a public speaker to maintain his anonymity is firmly rooted in the First Amendment.
In
Talley,
the United States Supreme Court struck down a California statute that required the name of the author and printer of a political pamphlet to be displayed on the cover. The Court pointed out that “[pjamphlets and leaflet [sic] ... ‘have been historic weapons in the defense of liberty.’ ”
Indeed, anonymous speech has played a vital and well-documented role in the nation’s history.
Our nation’s earliest and most influential works were anonymous.
This
tradition continues as some of the most vigorous and constructive contemporary political discourse is conducted anonymously.
Without a right to remain anonymous, the purpose of the First Amendment would be frustrated, as the fear of retaliation at the hands of those who may disagree with a speaker might dissuade him from speaking out in the first place.
2. Anonymous Speech and The Internet
The right to anonymous speech has been extended to the internet.
This extension is appropriate given that the internet readily “facilitates the rich, diverse, and far ranging exchange of ideas.”
While the reasons justifying the protection of anonymous speech over the internet really are no different than those justifying the protection of such speech in other contexts, anonymity on the internet does pose unique problems and concerns. In particular, information often is disseminated over the internet without any editorial filter.
Consequently, anonymous internet speech provides even less accountability than exists with anonymous speech published in other media. As one commentator has observed, the internet provides “not just the ability to put on a mask; it also [provides] the ability to hide absolutely who one is.”
3. The First Amendment Does Not Protect Defamatory Speech
As stated, the right to anonymous speech is a well-recognized component of the First Amendment; courts will protect anonymous speech with the same vigor demonstrated in the protection of free speech generally.
Courts have recognized, however, that the right to anonymous speech, like the right to free speech generally, is not absolute.
Thus, for instance, the First Amendment will not protect individuals who use anonymous speech to defame others.
In this regard, Justice Murphy, writing for an unanimous Court, explained:
Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution .... ’
While the internet offers an accessible and vital forum for free speech, by its nature, it also presents the real danger that users might abuse the medium by rapidly spreading defamatory information through “cyber space” to every desk top computer terminal with internet access throughout the world. This potential for widely-circulated, quickly-disseminated harmful speech over the internet, combined with the difficulty of identifying the source of the speech, can leave the victim of defamatory speech in the untenable situation of sitting idly by, without any recourse, as his reputation quite literally is destroyed. Even though legitimate competing interests are on the line, there must be a point when a speaker’s First Amendment right to anonymous speech will yield to the right of the target of his speech to protect his reputation. The Court’s task in this regard is to identify a standard by which these competing interests can be balanced and protected.
4. The
Dendrite
Standard
In
Dendrite,
a public corporation brought a defamation action against numerous John Doe defendants for messages posted on an internet bulletin board.
Three of the posted statements were messages accusing Dendrite and its president of altering accounting methods to overstate revenue.
A fourth statement accused the president of secretly shopping the company for sale because it was no longer competitive.
After filing its complaint, Dendrite sought an order to show cause why it should not be granted leave to conduct limited discovery for the purpose of ascertaining all of the John Does’ identities.
The New Jersey Superior Court denied the limited discovery request.
In doing so, the court adopted a standard, first articulated in Seescandy.com,
that requires a defamation plaintiff seeking the identity of anonymous internet subscribers to: (1) demonstrate that they have undertaken efforts to notify the anonymous posters that they are the subject of a subpoena; (2) identify to the court the statements made by each anonymous poster; and (3) establish a
prima facie
cause of action for defamation against the anonymous posters by producing evidence sufficient to support each element of the claim.
If the plaintiff is able to present a
prima facie
case for defamation, then the court must “balance the defendant’s First Amendment right of anonymous 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 balancing does not occur unless and until the
prima facie
case has been established.
The practical effect of the
Dendrite
standard is that the plaintiff must answer what is tantamount to a motion to dismiss before the plaintiff can learn the identity of the speaker he claims has defamed him.
Dendrite
characterizes this burden as a requirement that the plaintiff demonstrate “probable cause” that defamation has oe-curred.
According to
Dendrite,
setting this high threshold of proof for the plaintiff is necessary to prevent the abuse of liberal discovery rules.
Relying upon the
Dendrite
standard, John Doe No. 1 contends that the Cahills cannot demonstrate a
prima facie
case of defamation. The two statements attributed to John Doe No. 1, considered in a light most favorable to the Cahills, accuse Mr. Cahill of being mentally ill and/or gay.
According to John Doe No. 1, neither statement is
per se
defamatory.
Rather, if anything, both statements are nothing more than “rhetorical hyperbole.”
The concern that animates the
Dendrite
standard, at first glance, makes perfect sense: if subpoenas can be obtained merely by filing suit, people will be reluctant to speak their mind knowing that their anonymity is tenuous and that retribution for whatever they might say is all the more likely. This is hardly a frivolous consideration. Nevertheless, the
Dendrite
standard goes further than is necessary to protect the anonymous speaker and, by doing so, unfairly limits access to the civil justice system as a means to redress the harm to reputation caused by defamatory speech. Specifically, under
Dendrite,
the plaintiff is put to the nearly impossible
task of demonstrating as a matter of law that a publication is defamatory before he serves his complaint or even knows the identity of the defendant(s). Indeed, under
Dendrite,
the plaintiff is not even able to place the alleged defamation in context by describing the relationship between the plaintiff and the speaker because the speaker’s identity is protected until the
prima facie
case against him has been established.
5. The
America Online
Standard
In re Subpoena Duces Tecum to America Online, Inc. (“America Online”)
involved a lawsuit against five John Doe defendants alleging defamation and other breaches of fiduciary duty after the defendants allegedly revealed false, confidential information regarding a publicly traded company in an internet chat room. The plaintiff corporation sought to compel America Online (by subpoena) to determine the identities of the anonymous posters and to disclose the identities to the plaintiff. While the court recognized the importance of protecting an internet user’s right to anonymous speech, the court noted that “[t]hrough the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.”
Based on this and other concerns, the court expressly declined to follow
Dendrite
and, instead, chose a less burdensome standard by which to consider a plaintiffs request to discover the identity of anonymous defendants in the defamation context. The
America Online
standard requires the plaintiff to satisfy the court that he has a “good faith basis to contend that [he] may be the victim of [actionable] conduct,” and that the identity information being sought is “centrally needed to advance that claim.”
The Court finds that the standard adopted in
America Online
is the more balanced and appropriate standard by which to address the competing interests presented in cases such as this. Even though the
America Online
standard clearly is less onerous than its counterpart, the “good faith” showing required by
America Online
is not insubstantial and more than adequately protects against the abuse of the subpoena power by an overzealous defamation plaintiff.
Any “limited intrusion” on the First Amendment
rights of innocent, anonymous internet posters that may be occasioned by the Court’s adoption of the “good faith” standard is substantially outweighed by the need to protect Delaware citizens from the “potentially severe consequences” of defamatory internet communications.
B. The Cahills’ Defamation Claim
Under the “good faith” standard that has now been adopted by the Court, in order for the Cahills to discover the identity of John Doe No. 1, they must demonstrate: (i) that they have a legitimate, good faith basis upon which to bring the underlying claim; (ii) that the identifying information sought (John Doe No. l’s identity) is directly and materially related to their claim; and (iii) that the information cannot be obtained from any other source.
1. Good Faith Basis
In determining whether the defamation claim has been brought in good faith, the Court’s review necessarily is confined to the complaint and the papers filed in connection with the plaintiffs request for a subpoena (including the briefs that have been filed in connection with the motion for protective order).
As indicated previously, this case is in its infancy; there literally is no other information available in the record for review beyond the initial pleadings and motion papers.
John Doe No. 1 argues that the Cahills’ defamation claim fails because referring to someone as mentally ill or as a homosexual is not
per se
defamatory. While this argument may have found more traction under the
Dendrite
standard, it stumbles when considered against the less burdensome
America Online
“good faith” standard. To make a “good faith” claim of defamation, the Cahills need not establish
per se
defamation. Rather, it is enough to meet the “good faith” standard that the Cahills articulate a legitimate basis for claiming defamation in the context of their particular circumstances.
Given that Mr.
Cahill is a married man, John Doe No. l’s statement referring to Mr. Cahill as “Ga-hill” might reasonably be interpreted as indicating that Mr. Cahill has engaged in an extra-marital same-sex affair.
Such a statement may form the basis of an actionable defamation claim.
Additionally, the Court finds that the Cahills have articulated a good faith basis for a defamation claim with respect to John Doe No. l’s statements concerning Mr. Cahill’s mental state. Again, the context in which the statements were made is probative. John Doe No. l’s statements might give the reader the impression that John Doe No. 1 has personal knowledge that Mr. Cahill’s mental condition is deteriorating and that he is becoming “paranoid.” Given that Mr. Cahill is a member of the Smyrna Town Council, an elected position of public trust, the impression that he is suffering from diminished mental capacity might be deemed capable of causing harm to his reputation, particularly when disseminated over the internet for all of his constituents to read.
2. The Identifying Information is Directly and Materially Related to The Cahill’s Claim
Next, the Cahills must show that the identifying information they seek by subpoena is essential to their claim. Stated differently, the identifying information sought by the subpoena must relate directly and materially to an essential aspect of the claim.
“If the information relates only to a secondary claim or to one of numerous affirmative defenses, then the primary substance of the case can go forward without disturbing the First Amendment rights of the anonymous Internet users.”
In this case, the Cahills easily satisfy this prong of the analysis. The identity of John Doe No. 1 is essential to their defamation claim because without his identity, they are unable to effect service of their complaint upon John Doe No. 1 and commence the litigation.
3. John Doe No. l’s Identity Cannot Be Obtained From Another Source
Finally, the Cahill’s subpoena seeking the identity of John Doe No. 1 will be enforced only if they are able to demonstrate that they cannot discover the identity of John Doe No. 1 by other means. In an internet case, it is clear that the ISP can readily provide the identity of its subscribers). But this does not mean in all instances that it should be compelled to do so. The plaintiff must first attempt to locate the identifying information from other sources or demonstrate that it would be futile to undertake this effort. In this case, the Court has permitted the Cahills to discover whether John Doe No. 1 may
have voluntarily disclosed his identity to any third party.
If he had done so, the Court was satisfied that he would have waived his right to remain anonymous. Otherwise, based on John Doe No. l’s assertion of his First Amendment right to anonymous speech, the Court precluded the Cahills from compelling any third parties to disclose the identity of John Doe No. 1, during depositions or otherwise, pending the outcome of this motion.
To the Court’s knowledge, despite months of trying, the Cahills still have not discovered the identity of John Doe No. 1. Accordingly, the Court is satisfied that it is now appropriate to compel third parties, including Comcast, to disclose this information to the extent it is known.
V.
The right of internet “speakers” to remain anonymous is essential if the internet is to remain a place where people will feel free to exchange information, ideas, and opinions. There is, however, a distinction between using the internet to exchange ideas and opinions and using it as a cover to defame others. Under certain circumstances, when a plaintiff can, in good faith, allege that a user has put the internet to use as a tool for defamation, the internet user will forfeit his right to anonymity in favor of the injured party’s right to seek redress for the damage caused by the defamatory speech. Such is the case here. Consequently, John Doe No. l’s motion for protective order must be DENIED. Comcast shall supply forthwith all information sought in the subpoena pertaining to the identity of John Doe No. 1. IT IS SO ORDERED.