N.J. Court Rules Gmail User Accused Of Libel Can Remain Anonymous
- by Wendy Davis @wendyndavis, March 13, 2010
The court ruled that although high school student Alexandra Zubowski alleged she was libeled in the email, she didn't submit an affidavit stating the email's content was false. Without such a document, she had not presented a solid enough case of defamation to be able to unmask the sender, the court ruled.
Zubowski and her parents sued after a Gmail user sent an email to her school alleging that she wasn't living up to promises of good conduct that she made as a member of the school's "Heroes and Cool Kids" program. The email, signed by "a concerned parent," included photos from Facebook of Zubowski and other students. One showed Zubowski standing in front of a ping pong table with plastic cups and seven beer cans on top of it.
The school forwarded the email to the police, who investigated but declined to press charges.
Zubowski sued the anonymous author for libel and a judge ordered Google to provide information about the IP address associated with the account. Zubowski learned that the Internet service provider was Optimum Online; that company notified the customer about the subpoena, after which the author moved to quash it.
A trial judge in Bergen County, N.J. agreed with the author and quashed the subpoena.
The appellate court upheld that decision earlier this month, ruling that "no reasonable factfinder" could conclude that the email was false. Not only did Zubowski fail to deny that she had engaged in underage drinking, but the anonymous author also presented several other Facebook photos that, according to the court, showed her "holding and drinking alcoholic beverages."
Courts in New Jersey have said that people have the right to speak anonymously online, and therefore can only be unmasked if libel plaintiffs show they have a potentially valid case and if their interest in suing outweighs the speakers' First Amendment interests in keeping their identity secret.
Zubowski argued that those requirements only apply when people seek to unmask anonymous online authors who post in a public forum, and not to senders of emails, which she called a "private communication" similar to physical letters.
She argued that the court should simply decide whether she had alleged sufficient facts to proceed on the libel case without then weighing that against the sender's right to anonymity. But the appellate court said it didn't have to decide whether to balance Zubowski's right to sue against the speaker's right to remain unknown because Zubowski hadn't made out a potentially valid defamation case.
"We consider all of the photographs in conjunction with plaintiff's failure to present any certification of her own, or from any other witness, certifying that she was not consuming alcoholic beverages on the occasion that is depicted in the original photograph," the court wrote. "Having done so, only one conclusion can be drawn: plaintiff has not presented prima facie proof that [the sender's] statement was false."
