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Technology: When should anonymous Internet posters lose their anonymity?

Courts are still struggling to find a proper balance between protection from defamation and the First Amendment right to anonymous free speech.

Anonymously posted comments are a fixture of the Internet. In some cases, however, such postings are alleged to be defamatory. The question that then arises is what must a plaintiff prove to learn the identity of the anonymous poster? Given the historical First Amendment protection for anonymous free speech, two critical issues have surfaced:

1. Should disclosure of the poster’s identity merely require the plaintiff to show that its complaint would withstand a motion to dismiss for failure to state a claim, or should the plaintiff have to show that its claim would withstand a summary judgment motion?

Last year, however, an Illinois court refused to adopt the Dendrite-Cahill standard in Maxon v. Ottawa Publishing Co., 929 N.E.2d 666, 676 (Ill. App. Ct. 2010). The court in Maxon rejected the idea that the plaintiff’s claim should be tested by a summary judgment standard rather than a motion to dismiss standard, reasoning that Illinois is a fact pleading jurisdiction that requires a legally and factually sufficient complaint. The court further held that once the plaintiff has set forth a prima facie case,

he has made out a valid claim for damages and has a right to expect a remedy. Likewise, once the petitioner has made out a prima facie case for defamation, the potential defendant has no first-amendment right to balance against the petitioner’s right to seek redress for damage to his reputation, as it is well settled that there is no first-amendment right to defame.


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Patrick Patras

Patrick L. Patras is a partner in the Chicago office of Hinshaw & Culbertson LLP. He concentrates his practice in the areas of intellectual property...

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