In a case of first impression, the New Jersey court of appeals held that websites have the right to protect the identities of readers who post comments related to public events. Diane Trawinsky v. John Doe, Docket No. A-0312-14T1 (App. Div., June 3, 2015)

Plaintiff, Diane Trawinski, is the wife of former Elmwood Park borough councilman Rich Trawinski.  Plaintiff filed a complaint alleging that an individual using the screen name “EPLifer2” began posting defamatory statements about plaintiff on the website. is an on-line news provider that publishes content from the Star-Ledger, New Jersey’s largest newspaper.

The trial court entered an order permitting plaintiff to issue a subpoena requiring to provide all documents in its possession “identifying and/or describing the name, address and/or e-mail address of … EPLIFER2 …” challenged the subpoena. The trial court granted plaintiff’s motion to enforce the subpoena and ordered to identify “EPLifer2” within 14 days or pay sanctions of $1000 per day. filed a motion for leave to appeal and to stay the trial court’s sanctions order. The appeals court reversed the trial court’s order and remanded the matter to the trial court for further findings.

On remand, the trial court denied plaintiff’s request for a subpoena requiring to identify “EPLifer2.” The trial court found that plaintiff did not establish a prima facie cause of action for defamation because the complaint did not specifically identify any defamatory statements. Plaintiff appealed, arguing that the trial court erred in two respects: first, in finding she failed to establish a prima facie case of defamation, and, second, by failing to make findings concerning’s standing to challenge the subpoena seeking EPLifer2’s identifying information.

The appellate court affirmed the trial court in all respects. First, the court held that plaintiff’s unsupported allegations concerning “EPLifer2’s” comments were insufficient to establish a prima facie case of defamation. Moreover, the court confirmed the First Amendment rights of anonymous commenters to remain anonymous:

[E]xpressions that clearly reflect opinion on matters of public concern are protected and are not actionable. Where the statement consists of “[l]oose, figurative or hyperbolic language, [it] will be . . . more likely to be deemed nonactionable as rhetorical hyperbole or a vigorous epithet.” Here, “EPLifer2’s” comment represented criticism of a local politician and his spouse for their involvement in political matters. The comments reflected “EPLifer2’s” opinion of these two individuals and, at best, are “rhetorical hyperbole” on a matter of public concern. Accordingly, we agree with the trial judge that the posted comment was non-actionable, and disclosure of the identity of “EPLifer2” was not warranted. (Citations Omitted)

Second, concerning’s standing to challenge the subpoena seeking EPLifer2’s identifying information, the appeals court, while recognizing that the issue of an online news provider’s standing to assert the constitutional rights of its users had not yet been addressed in New Jersey, concluded that had standing to contest the subpoena based upon court decisions from other jurisdictions, The court reasoned as follows:

(1) [A]}nonymous commentators to the newspaper website face practical obstacles to asserting their own First Amendment rights because doing so would require revelation of their identities[.]; (2) [T]he newspaper itself displays the adequate injury-in-fact to satisfy . . . case or controversy requirements; and (3) [T]he newspaper will zealously argue and frame the issues before the [c]ourt. (Citation Omitted)

The Trawinski case is annexed here – Diane Trawinsky v. John Doe

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