Social Media Defamation Under New Jersey Law
by Keith J. Miller
M
ost of the major New Jersey defama-
atory comments in a public forum? Who is considered a jour-
tion cases decided over the past half-
nalist for purposes of the New Jersey Reporter’s Shield Law,
century have involved traditional
and should the privileges and protections afforded to journal-
media defendants, such as newspa-
ists in their recognized role as the “eyes and ears of the pub-
pers sued for libel (defamation
lic”3 be extended to bloggers and other online critics who may
through written words) or television
not meet all of the recognized criteria of the traditional
and radio stations sued for slander (defamation through spo-
media? The cases discussed below show these seemingly sim-
ken words). Defamation lawsuits generally are not favored
ple questions have profound public policy implications.
under New Jersey law, because “New Jersey Courts ‘have rec-
For example, New Jersey courts have had to address the
ognized that First Amendment values are compromised by
question of whether ‘publication’ of a defamatory statement
long and costly litigation in defamation cases.’”1 Based on the
has a different meaning on the Internet than it does in tradi-
state’s express public policy of encouraging robust debate
tional media. New Jersey’s strict statute of limitations requires
about matters of public concern, New Jersey courts often rely
defamation lawsuits to be filed within one year of publication
on the free-speech provision of the New Jersey Constitution,
of the allegedly defamatory statement.4 In construing this
Article I, Paragraph 6, to provide even greater expressive pro-
statute, New Jersey has adopted the so-called single publication
tection than mandated by the First Amendment, in recogni-
rule, which holds that a defamation plaintiff has a single cause
tion of the fact that the “threat of prolonged and expensive
of action that arises at the first publication of an allegedly
litigation has a real potential for chilling journalistic criticism
defamatory statement, regardless of the number of times the
and comment upon public figures and public affairs.”2
statement is later republished, sold or recopied.5 This means the
In traditional media defamation cases, it is usually relative-
one-year statute of limitations begins to run the first time an
ly easy to ascertain the existence of the elements of a prima
allegedly defamatory statement is published, and is not tolled
facie cause of action: publication (dissemination to a third
by later republication of the same statement.
party) of a false statement of material fact (not opinion) that
However, in Churchill v. State6 the plaintiffs argued the sin-
causes reputational harm to an identifiable individual. In
gle publication rule should not apply to allegedly defamatory
recent years, however, New Jersey courts have begun to apply
statements published on the Internet, claiming Internet pub-
traditional defamation law concepts to the vast new forms of
lications lack the professionalism and ‘internal control’ gener-
speech on the Internet and in social media such as blogging,
ally found in traditional print media and are subject to much
emails, Facebook posts, and website forums.
wider potential dissemination and abuse due to ‘hyperlink-
Not only has the explosion of social media speech greatly
ing’ by Internet search engines. The Appellate Division held
increased the number of opportunities for publication of false
that Internet publications should be treated in the same man-
statements of fact, it has also raised novel legal questions
ner as publications made through traditional mass media,
about the elements of a defamation cause of action. For exam-
including strict application of the one-year statute of limita-
ple, what is considered publication on the Internet? Can a
tions through the single publication rule. In so doing, the
defamation plaintiff force an Internet service provider (ISP) to
court noted the changing realities of the new media world:
identify an anonymous user who has posted allegedly defamNJSBA.COM
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We find no principled basis in a situa-
against a ‘Doe’ defendant, and then
prima facie cause of action, the trial
tion like the one before us for treating
must issue and serve a non-party sub-
court must then “balance the defen-
the Internet differently than other
poena on the ISP that hosted the web-
dant’s First Amendment right of anony-
forms of mass media. The Internet
site at issue in an attempt to identify the
mous free speech against the strength of
appears to be particularly suited to
‘real’ defendant.
the prima facie case presented and the
application of the publication rule
In light of the “well-established First
necessity for disclosure of the anony-
because it is rapidly becoming (if it has
Amendment right to speak anonymous-
mous defendant’s identity to allow the
not yet already become) the current
ly,” the Appellate Division, in the semi-
plaintiff to properly proceed.”15
standard for the mass production, dis-
nal case of Dendrite International v. John
The Dendrite test is difficult for a
tribution and archival storage of print
Doe,
set forth exacting procedural
plaintiff to satisfy because it favors
data and other forms of media.7
requirements and substantive standards
anonymous speech on the Internet, but
12
Another fast-developing area of New
that must be satisfied prior to issuance
it is not insurmountable. The same
Jersey defamation law concerns alleged-
of an order allowing expedited discov-
Appellate Division panel that decided
ly defamatory comments posted by
ery into the identity of an anonymous
Dendrite issued the companion opinion
anonymous users on the Internet or in
online poster. The plaintiff in Dendrite
of Immunomedics, Inc. v. Doe16 to illus-
social media. It is common practice for
claimed to have been defamed by
trate the limits of the Dendrite test.
social media users to post their com-
anonymous
about
Immumomedics also involved a subpoe-
ments under pseudonyms instead of
alleged irregularities in its accounting
na served on an ISP seeking to uncover
their actual names. It is well established
practices.
the identity of an anonymous Internet
online
postings
that the right to anonymous speech on
In denying the plaintiff’s application
critic who posted allegedly defamatory
the Internet is protected by both the
for issuance of a subpoena to the ISP
statements about the plaintiff. However,
First Amendment of the United States
hosting the website on which the
the record before the trial court con-
Constitution and Article 1, Paragraph 6
offending postings were made, the
tained evidence that the anonymous
of the New Jersey Constitution. This
Appellate Division set forth what
poster was likely an employee of the
right was recognized and expanded
became known as the Dendrite test. To
plaintiff who was posting confidential
upon by the New Jersey Supreme Court
begin with, the plaintiff must take steps
and proprietary financial information in
in State v. Reid,9 which held that citizens
to notify the anonymous poster that an
contravention of a confidentiality agree-
have a reasonable expectation of priva-
application has been made to the trial
ment. Based on that record evidence,
cy in the subscriber information they
court to uncover his or her identity, usu-
the trial court refused to quash the sub-
provide to an ISP.
ally by posting a legal notice on the
poena, and the Appellate Division
forum from which the offending com-
affirmed, holding the Dendrite test had
been satisfied by the plaintiff.
8
Problems arise when plaintiffs who
allege they have been defamed by
ments emanated. Additionally, the
anonymous comments on the Internet
plaintiff is required to identify to the
The court reasoned as follows:
or in social media attempt to identify
trial court “the exact statements pur-
Although anonymous speech on the
the persons who allegedly made the
portedly made by each anonymous
Internet is protected, there must be an
offending comments so they can be
poster that plaintiff alleges constitutes
avenue for redress for those who are
added as named defendants to defama-
actionable speech.”13 The trial court
wronged. Individuals choosing to
tion lawsuits. It is not possible for a
must then carefully review the com-
harm another or violate an agreement
plaintiff to directly name an ISP as a
plaint and all information provided to
through speech on the Internet cannot
defendant on the theory that it is
the trial court to determine whether the
hope to shield their identity and avoid
responsible for ‘publishing’ the alleged-
plaintiff has set forth a prima facie cause
punishment through invocation of the
ly defamatory comments, because Sec-
of action against the anonymous defen-
First Amendment.17
tion 230 of the Communications
dant. This review goes beyond merely
Decency Act of 1996 provides ISPs with
satisfying that the lawsuit would survive
So although the Dendrite standard is
immunity from defamation liability for
a motion to dismiss the complaint; the
difficult to satisfy, it does not allow for
the contents of postings made by oth-
plaintiff must exceed that standard and
unlimited anonymous speech on the
ers.11 Because of Section 230 immunity, a
“produce sufficient evidence supporting
Internet.
10
plaintiff alleging defamation through
14
each element of its cause of action.”
The Dendrite test has been applied in
anonymous comments on the Internet
Additionally, even if the trial court con-
a variety of social media contexts in the
has to file a defamation complaint
cludes the plaintiff has presented a
years since the original opinion was
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issued. For example, in Juzwiak v. Doe18 a
cisms about a real estate development
absolute defense to any defamation
anonymous
project. The court found the anony-
claim, the subpoena was held properly
harassing emails filed a Doe lawsuit for
mous statements at issue (e.g., that the
quashed under Dendrite.25
intentional infliction of emotional dis-
plaintiff “short changed the tax payers
The A.Z. opinion is especially inter-
tress and then served a non-party sub-
with millions” and was a “rip off artist”
esting from a social media perspective
poena on the ISP seeking to uncover the
and an “under the table crook”), were
because it involved affirmative use of
identity of the sender of the emails. The
not actionable statements of fact, but
social media by the court (reviewing
Appellate Division ruled the subpoena
rather
Facebook photographs) to make its legal
should have been quashed by the trial
“rhetorical hyperbole” about a matter of
court under Dendrite, since the plaintiff
public concern reflecting the anony-
had failed to sufficiently state a prima
mous author’s opinion.23
teacher
who
received
facie claim for intentional infliction of
emotional distress.19
The Juzwiak court expressly reaffirmed the principle that
constituted
non-actionable
ruling under Dendrite.
The New Jersey Supreme Court
delved into the world of social media
In affirming the plaintiff was not
when deciding the recent high-profile
entitled to uncover the identity of his
defamation case Too Much Media, LLC v.
critics, the Appellate Division once
Hale.26 Defendant Hale posted numerous
again expressly stressed the public poli-
messages on a public Internet message
cy importance of protecting anonymous
board about the plaintiffs’ adult enter-
[t]he right to speak anonymously is
speech about matters of public concern,
tainment business, including allegations
protected by the First Amendment and
especially when political matters are
the plaintiffs had engaged in criminal
‘derives from the principle that to
involved.
activities, which Hale claimed to have
ensure a vibrant marketplace of ideas,
In A.Z. v. Doe, the Appellate Division
learned from “confidential sources.”
some speakers must be allowed to
applied the Dendrite test to an allegedly
The plaintiffs filed a defamation suit
withhold their identities to protect
defamatory anonymous email sent to a
against Hale and other unknown Doe
themselves from harassment and per-
high school administrator involving
defendants, and subsequently sought to
secution.’
20
24
photographs posted on a Facebook
take Hale’s deposition to learn, among
page. The email in question alleged the
other things, the identities of her
The court rejected the plaintiff’s
plaintiff (a student at the high school)
sources. Hale moved for a protective
assertion that the Dendrite test should
had been involved in underage drink-
order, claiming she was a journalist enti-
not be applied because the allegedly
ing, and claimed the Facebook photo-
tled to the protections of New Jersey’s
threatening emails at issue were not pro-
graphs substantiated the allegation. The
Reporter’s Shield Law, which gives jour-
tected by the First Amendment, hold-
trial court found the plaintiff had estab-
nalists the privilege to protect the confi-
ing:
lished a prima facie case of defamation,
dentiality of their sources and of their
but still quashed a subpoena to the ISP
newsgathering activities.27
The test for whether a communication
seeking to uncover the author of the
After an evidentiary hearing, the trial
should lose the mantle of First Amend-
email, because it found the author’s
court ruled Hale was not a journalist for
ment protection must be an objective
right to engage in anonymous speech
purposes of the law, because her posting
one, rather than one based upon the
outweighed the plaintiff’s interest in
of messages on the Internet was not
personal and individual reaction of the
pursuing her defamation claim.
similar to the types of news media activ-
recipient of the communication.
21
The Appellate Division affirmed the
ities identified in the law. In a lengthy
quashing of the subpoena, but for differ-
published opinion, the Appellate Divi-
By its ruling, the Appellate Division
ent reasons. After reviewing the Face-
sion affirmed the trial court’s ruling that
made clear that a plaintiff cannot cir-
book photographs at issue (which were
Hale was not entitled to the protections
cumvent the Dendrite test merely by
part of the record), the court found the
of the Reporter’s Shield Law, although it
claiming to feel threatened by anony-
plaintiff had not met her burden of
did not completely agree with the trial
mous speech.
proving the allegedly defamatory state-
court’s rationale.28 The Supreme Court
The Appellate Division applied the
ment (that the plaintiff had been
granted certification so it could issue a
Dendrite test to a blogger in Somerset
involved in underage drinking) was not
more definitive ruling on the tricky
Development, LLC v. Cleaner Lakewood,22
true, because the photographs showed
issue of who qualifies as a journalist on
affirming the quashing of a subpoena
the plaintiff playing beer pong in the
the Internet and in social media, and it
seeking to uncover the identity of a
company of minors clearly consuming
also granted amicus curiae status to a
blogger who posted anonymous criti-
alcoholic beverages. Since truth is an
number of media and civil liberties
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NEW JERSEY LAWYER | October 2013
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organizations.
Turning to the specific facts of the Too
tion to view.... Adams’ desire to pub-
The opening paragraph of Chief Jus-
Much Media case, the Court found the
lish the Internet statements to the
tice Stuart Rabner’s Too Much Media
Internet message board on which Hale
entire country and the fact that the
opinion expressed how social media’s
had posted her allegedly defamatory
statements refer to previous court pro-
rapid ascent had complicated the legal
comments was not the functional
ceedings do not necessarily make his
issues in the case:
equivalent of traditional news media,
allegations a matter of public inter-
since it merely allowed people to
est.37
Millions of people with Internet access
“express their thoughts about matters of
can disseminate information today in
interest.”33 The Court noted the Legisla-
So both in Too Much Media and
ways that were previously unimagin-
ture, when enacting the Reporter’s
W.J.A., the Court’s determination that
able. Against that backdrop…we are
Shield Law, surely did not intend to con-
the defendants were not acting as mem-
asked to decide whether the newsper-
fer an absolute reporter’s privilege on
bers of the media when they posted
son’s privilege extends to a self-
every person posting a comment about
allegedly defamatory information on
described journalist who posted com-
an article on NJ.com or other popular
the Internet was critical to the ultimate
ments on an Internet message board.29
websites.34 However, the Court did note
outcome of the cases.
it might be possible for a single blogger
The cases discussed above demon-
The key question was whether Hale
to qualify for the protections of the law
strate that New Jersey courts have had
was covered by the Reporter’s Shield
under the right factual circumstances,
no choice over the past decade but to
Law’s protections, which only applied
which simply were not present in the
continually adapt the state’s body of
to “a person engaged on, engaged in,
record on review.
defamation law to the ever-changing
35
connected with, or employed by news
The New Jersey Supreme Court
world of social media. New forms of
media for the purpose of gathering,
recently issued another decision involv-
online speech are developing constant-
procuring,
compiling,
ing Internet defamation—W.J.A. v.
ly, and New Jersey’s defamation law will
editing, or disseminating news for the
D.A. In that case, defendant Adams cre-
have to continue developing along with
general public....”30 Of course, when the
ated a website for the express purpose of
them to uphold the state’s policy of fos-
law was drafted many decades ago, there
spreading his unproven allegations that
tering “uninhibited, robust and wide-
was no such thing as social media or
his uncle had sexually abused him,
open” debate about matters of public
alternative media, only traditional
which led the uncle to file a defamation
concern.38
media such as newspapers, magazines,
lawsuit against Adams. Although the
televisions and wire services.
trial court found the allegations on the
Endnotes
website were defamatory per se, an issue
1.
transmitting,
The Too Much Media Court noted:
36
Rocci v. Ecole Secondaire, 165 N.J.
arose regarding whether and how the
149, 158 (2000) (citing Sedore v.
The existence of new technology
plaintiff was required to prove his repu-
Recorder Publishing, 315 N.J. Super.
merely broadens the possible spectrum
tation had been harmed in order to
of what the law might encompass—
recover damages. The damages issue
from daily print journalism, to web-
that was ultimately decided by the
sites like drudgereport.com, to chat
Supreme Court hinged upon the Court’s
1371, 163 (App. Div. 1998)).
2.
Kotlikoff v. Community News, 89 N.J.
62, 67 (1982).
3.
South Jersey Publishing Co. v. New Jer-
rooms, personal blogs, and beyond.
finding that Adams clearly was not act-
sey Expressway Auth., 124 N.J. 478,
But these expanded formats are simply
ing as a member of the media when he
496-97 (1991).
the mechanism for delivering informa-
made his allegations about his uncle on
4.
N.J.S.A. 2A:14-3.
tion. Form alone does not tell us
the Internet; he was attempting to harm
5.
Barres v. Holt, 131 N.J. Super. 371
whether a particular method of dis-
his uncle in a purely personal matter
(Law Div. 1974), aff’d o.b., 141 N.J.
semination qualifies as ‘news media’
that did not raise an issue of public con-
Super. 563 (App. Div. 1976), aff’d
under the statute.
cern.
31
The Court held:
The Court held the proper analysis
for determining the applicability of the
Adams had the ability to exercise due
o.b., 74 N.J. 461 (1977).
6.
378 N.J. Super. 471 (App. Div. 2005).
7.
Id. at 483.
8.
See, e.g., Dendrite International v. John
Reporter’s Shield Law was to consider
care when making his statements, but
Doe, 342 N.J. Super. 134, 148 (App.
whether the medium in question was
chose instead to publish them online
Div. 2001) (citing Buckley v. American
“similar to traditional news media.”32
for anyone with an Internet connec-
Constitutional Law Foundation, 525
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NEW JERSEY LAWYER | October 2013
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U.S. 182, 197-199 (1999)).
9.
31. Id. at 233.
194 N.J. 386 (2008).
32. Ibid.
10. Section 230 provides, in pertinent
33. Id. at 235.
part, “No provider or user of an
34. Id. at 236.
interactive computer service shall
35. Id. at 237.
be treated as the publisher or speak-
36. 210 N.J. 229 (2012).
er of any information provided by
37. Id. at 246.
another
content
38. Sedore v. Recorder Publishing Co., 315
provider.” 47 U.S.C. §230(c)(1). Sec-
information
N.J. Super. 137, 146 (App. Div. 1998)
tion 230 also provides that “[n]o
(quoting New York Times v. Sullivan,
cause of action may be brought and
376 U.S. 254, 270 (1964)).
no liability may be imposed under
any State or local law that is incon-
Keith J. Miller is one of the founding
sistent with this section.” 47 U.S.C.
partners of Robinson, Wettre & Miller LLC,
§230(e)(3).
in Newark. He specializes in representing
11. See Green v. AOL, 318 F.3d 465, 471
media clients, including large newspapers,
(3d Cir. 2003); Zeran v. American
commercial websites, wire services, and
Online, Inc., 129 F.3d 327, 330 (4th
publishing houses. He frequently handles
Cir. 1997); Ben Ezra, Weinstein & Co.
defamation lawsuits, Open Public Records
v. American Online, Inc., 206 F.3d
Act cases, First Amendment cases, and
980, 986 (10th Cir. 2000) (“Con-
reporters’ subpoenas.
gress clearly enacted § 230 to forbid
the imposition of publisher liability
on a service provider for the exercise
of its editorial and self-regulatory
functions”).
12. 342 N.J. Super. 134, 141 (App. Div.
2001).
13. Id.
14. Ibid.
15. Id. at 142.
16. 342 N.J. Super. 160 (App. Div. 2001).
17. Id. at 167.
18. 415 N.J. Super. 442 (App. Div. 2010).
19. Id. at 452.
20. Id. at 447 (quoting M. Mazotta, Balancing Act: Finding Consensus On
Standards For Unmasking Anonymous Internet Speakers, 51 B.C.
L.Rev. 833 (2010)).
21. Id. at 450.
22. 2012 WL 4370271 (App. Div. 2012).
23. Id. at *4.
24. 2010 WL 816647 (App. Div. 2010).
25. Id. at *7.
26. 206 N.J. 209 (2011).
27. N.J.S.A. 2A:84A-21 et seq.
28. 413 N.J. Super. 135 (App. Div. 2010).
29. 206 N.J. at 216.
30. N.J.S.A. 2A:84A-21.
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