August 2015 • Volume 103 • Number 8 • Page 10
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Hadley: Author of anonymous online post must be revealed
In Hadley, the Illinois Supreme Court rules that a defamation plaintiff who can survive a motion to dismiss can expose an anonymous online defendant.
In a case that has drawn national attention, the Illinois Supreme Court recently ruled that Comcast must release identifying information about the till-then anonymous online defendant to the plaintiff in a defamation lawsuit.
A 'Sandusky waiting to be exposed'
In Hadley v. Subscriber Doe a/k/a Fuboy, 2015 IL 118000, the court considered what a plaintiff must show to compel the release of an Internet subscriber's identifying information. The court's ruling focuses on the tension between the right of an individual to speak anonymously and the "necessity" component of Illinois Supreme Court Rule 224, which allows a plaintiff to conduct discovery to identify a responsible party. It ultimately held that if a defamation claim can survive a section 2-615 motion to dismiss, then a plaintiff has demonstrated necessity sufficient to trigger Rule 224.
The discovery dispute in Hadley centered on the identity of an anonymous commenter who had posted disparaging remarks about plaintiff, Bill Hadley, on the Freeport Journal Standard's website. Although the identity of the poster was unknown when Hadley filed his complaint, the individual had registered the handle "Fuboy" with the newspaper's website.
Fuboy wrote, "Hadley is a Sandusky waiting to be exposed. Check out the view he has of [the local elementary school] from his front door." Hadley at ¶ 3. Hadley initially filed a defamation action in federal court against Gatehouse Media, the Journal Standard's parent company. During the federal lawsuit, Hadley obtained the IP address from which Fuboy had posted his comments. The federal lawsuit was ultimately dismissed because it was barred by federal law.
Hadley then turned to the circuit court of Stephenson County, where he filed his lawsuit against Fuboy. Hadley also subpoenaed Comcast, requesting access to records and information related to the IP address. After a motion to quash the subpoena was filed, the circuit court advised the parties that using Illinois Supreme Court Rule 224 was a better procedure for identifying Fuboy.
According to Benjamin Holden, a professor at the University of Illinois' College of Media, the "fighting issue" in Hadley is whether the First Amendment does and should allow a judge to order Comcast to give up an individual's IP address. Although Americans have a right to speak anonymously, not all speech is protected. Speech that is designed to cause imminent lawless action, that would compromise national security, and that is defamatory is unprotected, for example.
The circuit court found that if Hadley could establish that his defamation complaint could survive a section 2-615 motion to dismiss, he was entitled to discover Fuboy's identity pursuant to Rule 224. The court found that "Fuboy's statement referred to Jerry Sandusky, the Penn State University football coach who was charged with sexual abuse of numerous boys," which would be "obvious" to any reader. Id. at ¶ 11.
The court found that such a reference "imputed the commission of a crime to Hadley; that it was not capable of an innocent construction; and that it could not be considered an opinion." Id. The second district agreed with the circuit court, finding that Fuboy's comment represented per se defamation.
The high court's holding
The supreme court first established that Hadley's lawsuit was valid even though he did not know Fuboy's real identity. The Hadley court found that by bringing his suit against Fuboy, Hadley had sued a real person - one with a validly adopted alias. The court also noted that the proper method of using Rule 224 is to invoke it before filing suit: "Our holding here should not be read as expressing approval" of the method employed by the circuit court. Id. at ¶ 23.
Turning to the substantive issues in the case, the court stated that it "must balance the potential plaintiff's right to redress for unprotected defamatory language against the danger of setting a standard for disclosure that is so low that it effectively chills or eliminates the right to speak anonymously." Id. at ¶ 26. The court found that the proper standard was whether the Rule 224 petition adequately stated a claim that can survive a section 2-615 motion.
It wrote that "Illinois is a fact pleading state and, therefore, if a complaint can survive a motion to dismiss, it is legally and factually sufficient and should be answered." Id. It further observed that "once a plaintiff establishes a prima facie case for defamation…a potential defendant has no first amendment right to balance against the plaintiff's right to redress." Id. Prof. Holden points out that this standard is basically the lowest procedural bar that could be set, observing that the only lower standard would be a "good faith" standard.
In Hadley, the supreme court agreed with the lower courts that Fuboy's comment was defamatory per se. It found that the reference to "Sandusky" was not open to an innocent construction or a statement of opinion. As such, the court upheld the ruling of the circuit and district courts.
Update: on August 3, On Monday, the attorney fo the defendant filed a motion to stay with the U.S. Supreme Court to preserve his client's anonymity.