IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOHN DOE NO. 1, )
) No. 266, 2005
Movant Below, )
Appellant, ) Court Below: Superior Court
) of the State of Delaware in and
v. ) and for New Castle County
)
PATRICK CAHILL and ) C.A. No. 04C-011-022
JULIA CAHILL, )
)
Plaintiffs Below,
)
Appellees.
)
Submitted: September 7, 2005
Decided: October 5, 2005
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and
RIDGELY, Justices, constituting the court en banc.
Upon appeal from the Superior Court. REVERSED and REMANDED to
the Superior Court with instructions to DISMISS.
David L. Finger of Finger & Slanina, LLC, Wilmington, Delaware for
appellant.
Robert J. Katzenstein (argued) and Robert K. Beste, III of Smith,
Katzenstein & Furlow, LLP, Wilmington, Delaware for appellees.
Paul Alan Levy (argued) and Allison M. Zieve of Public Citizen Litigation
Group, Washington, DC; Norman M. Monhait of Rosenthal Monhait Gross &
Goddess, P.A., Wilmington, Delaware; Lawrence A. Hamermesh of Widener
University School of Law, Wilmington, Delaware, for amici curiae.
STEELE, Chief Justice:
The defendant-appellant, John Doe No.1, anonymously posted allegedly
defamatory statements about the plaintiff-appellee, Cahill, on an internet blog.
Cahill brought a defamation action. Seeking to serve process on Doe, Cahill sought
to compel the disclosure of his identity from a third party that had the information.
A Superior Court judge applied a good faith standard to test the plaintiff’s
complaint and ordered the third party to disclose Doe’s identity. Doe appeals from
the Superior Court’s order. Because the trial judge applied a standard
insufficiently protective of Doe’s First Amendment right to speak anonymously,
we reverse that judgment.
I.
On November 2, 2004, the plaintiffs below, Patrick and Julia Cahill, both
residents of Smyrna, Delaware, filed suit against four John Doe defendants
asserting defamation and invasion of privacy claims. This appeal involves only one
of the John Doe defendants, John Doe No. 1 below and “Doe” in this opinion.
Using the alias “Proud Citizen,” Doe posted two statements on an internet website
sponsored by the Delaware State News called the “Smyrna/Clayton Issues Blog”1
concerning Cahill’s performance as a City Councilman of Smyrna. The
“Guidelines” at the top of the blog stated “[t]his is your hometown forum for
Available at newsblog.info (statements at issue are no longer available on the
website).
2
opinions about public issues.” The first of Doe’s statements, posted on September
18, 2004, said:
If only Councilman Cahill was able to display the same leadership
skills, energy and enthusiasm toward the revitalization and growth of
the fine town of Smyrna as Mayor Schaeffer has demonstrated! While
Mayor Schaeffer has made great strides toward improving the
livelihood of Smyrna’s citizens, Cahill has devoted all of his energy to
being a divisive impediment to any kind of cooperative movement.
Anyone who has spent any amount of time with Cahill would be keenly
aware of such character flaws, not to mention an obvious mental
deterioration. Cahill is a prime example of failed leadership – his
eventual ousting is exactly what Smyrna needs in order to move
forward and establish a community that is able to thrive on its own
economic stability and common pride in its town.2
The next day, Doe posted another statement:
Gahill [sic] is as paranoid as everyone in the town thinks he is. The
mayor needs support from his citizens and protections from
unfounded attacks….3
These were the only two internet postings attributed to Doe or mentioned in the
Cahills’ complaint.
Pursuant to Superior Court Rule 30, the Cahills sought and obtained leave of
the Superior Court to conduct a pre-service deposition of the owner of the internet
blog, Independent Newspapers. After obtaining the IP addresses associated with
the blog postings from the blog’s owner, the Cahills learned that Comcast
2
Compl. ¶ 7 (emphasis added).
3
Id. at ¶ 8 (emphasis added).
3
Corporation owned Doe’s IP address. An IP address is an electronic number that
specifically identifies a particular computer using the internet. IP addresses are
often owned by internet service providers who then assign them to subscribers
when they use the internet. These addresses are unique and assigned to only one
ISP subscriber at a time. Thus, if the ISP knows the time and the date that postings
were made from a specific IP address, it can determine the identity of its
subscriber.
Armed with Doe’s IP address, the Cahills obtained a court order requiring
Comcast to disclose Doe’s identity. As required by Federal Statute4, when Comcast
received the discovery request, it notified Doe. On January 4, 2005, Doe filed an
“Emergency Motion for a Protective Order” seeking to prevent the Cahills from
obtaining his identity from Comcast. The Superior Court heard argument on the
motion on January 7. Following the argument, the trial judge invited supplemental
briefing and both Doe and the Cahills submitted additional argument.
On June 14, 2005, the trial judge issued a memorandum opinion denying
Doe’s motion for a protective order. The Superior Court judge adopted a “good
faith” standard for determining when a defamation plaintiff could compel the
disclosure of the identity of an anonymous plaintiff. Under the good faith
47 U.S.C. 551(c)(2) requires a court order to a cable ISP and notice to the ISP subscriber
before an ISP can disclose the identity of its subscriber to a third party.
4
standard, the Superior Court required the Cahills to establish: (1) that they had a
legitimate, good faith basis upon which to bring the underlying claim; (2) that the
identifying information sought was directly and materially related to their claim;
and (3) that the information could not be obtained from any other source. Applying
this standard, the Superior Court held that the Cahills could obtain Doe’s identity
from Comcast.5 Doe filed an interlocutory appeal, which we accepted on June 28,
2005.
II.
In this case, Doe claims that the trial judge incorrectly applied a good faith
standard when he denied the motion for a protective order. A claim that a trial
court applied an incorrect legal standard raises a question of law that we review de
6
novo.
III.
A.
The internet is a unique democratizing medium unlike anything that has
come before. The advent of the internet dramatically changed the nature of public
discourse by allowing more and diverse people to engage in public debate. Unlike
thirty years ago, when “many citizens [were] barred from meaningful participation
5
Memorandum Opinion, C.A. No. 04C-11-022, June 14, 2005 at 19.
6
Epstein v. Matsushita Elec. Indus. Co. (In re MCA, Inc. S'holder Litig.), 785 A.2d 625,
638 (Del. 2001) (citing Ison v. E.I. Dupont De Nemours & Co., 729 A.2d 832, 847 (Del. 1999)).
5
in public discourse by financial or status inequalities and a relatively small number
of powerful speakers [could] dominate the marketplace of ideas”7 the internet now
allows anyone with a phone line to “become a town crier with a voice that
resonates farther than it could from any soapbox.”8 Through the internet, speakers
can bypass mainstream media to speak directly to “an audience larger and more
diverse than any the Framers could have imagined.”9 Moreover, speakers on
internet chat rooms and blogs can speak directly to other people with similar
interests. A person in Alaska can have a conversation with a person in Japan about
beekeeping in Bangladesh, just as easily as several Smyrna residents can have a
conversation about Smyrna politics.
Internet speech is often anonymous. “Many participants in cyberspace
discussions employ pseudonymous identities, and, even when a speaker chooses to
reveal her real name, she may still be anonymous for all practical purposes.”10 For
better or worse, then, “the audience must evaluate [a] speaker’s ideas based on her
words alone.”11 “This unique feature of [the internet] promises to make public
Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49
Duke L.J. 855, 896 (2000).
8 Reno v. ACLU, 521 U.S. 844, 896-97 (1997).
9 Lidsky, supra note 7, at 895 (citations omitted).
10 Id.
11 Id. at 896.
6
debate in cyberspace less hierarchical and discriminatory” than in the real world
because it disguises status indicators such as race, class, and age.12
It is clear that speech over the internet is entitled to First Amendment
protection.13 This protection extends to anonymous internet speech.14 Anonymous
internet speech in blogs or chat rooms in some instances can become the modern
equivalent of political pamphleteering. As the United States Supreme Court
recently noted, “anonymous pamphleteering is not a pernicious, fraudulent
practice, but an honorable tradition of advocacy and dissent.”15 The United States
Supreme Court continued, “[t]he right to remain anonymous may be abused when
it shields fraudulent conduct. But political speech by its nature will sometimes
have unpalatable consequences, and, in general, our society accords greater weight
to the value of free speech than to the dangers of its misuse.”16
It also is clear that the First Amendment does not protect defamatory speech.
“[I]t is well understood that the right of free speech is not absolute at all times and
12
Id.
13
Reno v. ACLU, 521 U.S. 844 (1997) (There is “no basis for qualifying the level of First
Amendment scrutiny that should be applied to [the internet].”).
14
See, e.g., Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001)
(“[T]he constitutional rights of Internet users, including the First Amendment right to speak
anonymously, must be carefully safeguarded.”).
15
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995).
16
Id.
7
under all circumstances.”17 Certain classes of speech, including defamatory and
libelous speech, are entitled to no Constitutional protection. “It has been well
observed that such utterances are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality.”18
Accordingly, we must adopt a standard that appropriately balances one person’s
right to speak anonymously against another person’s right to protect his reputation.
III.
B.
In this case, this Court is called upon to adopt a standard for trial courts to
apply when faced with a public figure plaintiff’s discovery request that seeks to
unmask the identity of an anonymous defendant who has posted allegedly
defamatory material on the internet. Before this Court is an entire spectrum of
“standards” that could be required, ranging (in ascending order) from a good faith
basis to assert a claim, to pleading sufficient facts to survive a motion to dismiss, to
a showing of prima facie evidence sufficient to withstand a motion for summary
judgment, and beyond that, hurdles even more stringent. The Cahills urge this
Court to adopt the good faith standard applied by the Superior Court. We decline to
17
Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).
18
Id.
8
do so. Instead we hold that a defamation plaintiff must satisfy a “summary
judgment” standard before obtaining the identity of an anonymous defendant.
We are concerned that setting the standard too low will chill potential
posters from exercising their First Amendment right to speak anonymously. The
possibility of losing anonymity in a future lawsuit could intimidate anonymous
posters into self-censoring their comments or simply not commenting at all. A
defamation plaintiff, particularly a public figure, obtains a very important form of
relief by unmasking the identity of his anonymous critics. The revelation of
identity of an anonymous speaker “may subject [that speaker] to ostracism for
expressing unpopular ideas, invite retaliation from those who oppose her ideas or
from those whom she criticizes, or simply give unwanted exposure to her mental
processes.”19 Plaintiffs can often initially plead sufficient facts to meet the good
faith test applied by the Superior Court, even if the defamation claim is not very
strong, or worse, if they do not intend to pursue the defamation action to a final
decision. After obtaining the identity of an anonymous critic through the
compulsory discovery process, a defamation plaintiff who either loses on the
merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help
remedies; more bluntly, the plaintiff can simply seek revenge or retribution.
Lidsky, supra note 7 at 890.
9
Indeed, there is reason to believe that many defamation plaintiffs bring suit
merely to unmask the identities of anonymous critics. As one commentator has
noted, “[t]he sudden surge in John Doe suits stems from the fact that many
defamation actions are not really about money.”20 “The goals of this new breed of
libel action are largely symbolic, the primary goal being to silence John Doe and
others like him.”21 This “sue first, ask questions later” approach, coupled with a
standard only minimally protective of the anonymity of defendants, will discourage
debate on important issues of public concern as more and more anonymous posters
censor their online statements in response to the likelihood of being unmasked.
The parties inform us that we are the first State Supreme Court to address
this issue, particularly in the context of a case involving political criticism of a
public figure. In the past, this issue has most frequently been presented in cases
where publicly traded companies have sued anonymous internet posters for
statements that allegedly defamed those companies. In In re Subpoena to AOL22, a
Virginia trial court adopted the good faith standard for determining whether to
grant a defamation plaintiff’s discovery request seeking to unmask the identity of
an anonymous defendant. Indeed, in this very case, the Superior Court derived its
20 Id. at 872.
21 Id. at 859.
22 In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372, 2000 Va. Cir.
LEXIS 220 (Va. Cir. Ct. 2000), rev’d on other grounds, 542 S.E.2d 377 (Va. 2001).
10
standard from the AOL opinion. The AOL Court held that a trial court should order
a non-party ISP to provide information concerning the identity of an anonymous
subscriber only (1) when the court is satisfied by the pleadings or the evidence
supplied to that court (2) that the party requesting the subpoena had a legitimate,
good faith basis to contend that it may be the victim of actionable conduct and (3)
the subpoenaed identity information is centrally needed to advance that claim.23 In
our view, this “good faith” standard is too easily satisfied to protect sufficiently a
defendant’s right to speak anonymously. As one of our recent decisions, Ramunno
v. Cawley,24 illustrates, even the more stringent motion to dismiss standard, the
middle option in the spectrum of standards from which we may choose, falls short
of providing sufficient protection to a defendant’s First Amendment right to speak
anonymously.
III.
C.
Long-settled doctrine governs this Court’s review of dismissals under Rule
12(b)(6).25 Under that doctrine, the threshold for the showing a plaintiff must make
23 Id. at *8.
24 705 A.2d 1029 (Del. 1998)
25 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).
11
to survive a motion to dismiss is low. Delaware is a notice pleading jurisdiction.26
Thus, for a complaint to survive a motion to dismiss, it need only give “general
notice of the claim asserted.”27 A court can dismiss for failure to state a claim on
which relief can be granted only if “it appears with reasonable certainty that the
plaintiff could not prove any set of facts that would entitle him to relief.”28 On a
motion to dismiss, a court’s review is limited to the well-pleaded allegations in the
complaint.29 An allegation, “though vague or lacking in detail” can still be well-
pleaded so long as it puts the opposing party on notice of the claim brought against
it.30 Finally, in ruling on a motion to dismiss under Rule 12(b)(6), a trial court must
draw all reasonable factual inferences in favor of the party opposing the motion.31
In Ramunno, this Court unanimously reversed the Superior Court’s decision
to dismiss a plaintiff’s libel suit for failure to state a claim based “solely on
pleading rules.”32 Ramunno was a typical libel case in that the plaintiff, who was
26
VLIW Tech., L.L.C. v. Hewlett-Packard Co., 840 A.2d 606, 611 (Del. 2003).
27
Ramunno, 705 A.2d at 1034 (citing Solomon v. Pathe Communications Corp., 672 A.2d
35, 38 (Del. 1996)).
28
Id. (citing Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
29
Id. (citing In re Santa Fe Pac. Corp. Shareholder Litig., 669 A.2d 59, 65 (Del. 1995)
(citing In re Tri-Star Pictures, Inc. Litig., 634 A.2d 319, 326 (Del. 1993)).
30 VLIW Tech., 840 A.2d at 611.
31 Ramunno, 705 A.2d at 1034 (citing Solomon, 672 A.2d at 38) (other citations omitted).
32 Id. at 1031.
12
not a public figure, knew the defendants’ identities. In his complaint, the plaintiff
alleged that one defendant made certain false descriptions of the plaintiff’s
property holdings in a letter to the Mayor of Wilmington, a copy of which went to
The News Journal.33 The Superior Court granted that defendant’s motion to
dismiss, partly on the grounds that the description in the letter was substantially
true.34 Overturning the trial court, we noted that:
[w]e [did] not necessarily disagree with the substance of [the trial court’s]
finding. The trier of fact might very well find that the error was immaterial
and that the controversy itself is trivial. Indeed, on a summary judgment
record or at trial, the defendants may be successful in portraying this dispute
as silly.35
Nevertheless, we held that the Superior Court had erred in dismissing the
complaint because it failed to draw every reasonable factual inference in favor of
the plaintiff, as required by existing precedent.36
This is not to suggest that the Ramunno decision was wrongly decided, for it
was not. Ramunno clarified how courts of this state must apply the Rule 12(b)(6)
standard. We cite Ramunno only to illustrate that even silly or trivial libel claims
can easily survive a motion to dismiss where the plaintiff pleads facts that put the
33
Id. at 1032.
34
Id. at 1036.
35
Id. (emphasis added).
36
Id.
13
defendant on notice of his claim, however vague or lacking in detail these
allegations may be. Clearly then, if the stricter motion to dismiss standard is
incapable of screening silly or trivial defamation suits, then the even less stringent
good faith standard is less capable of doing so.
In a case like Ramunno where the plaintiff knows the defendant’s identity,
no constitutional harm comes from allowing a silly or trivial claim to survive a
motion to dismiss; the trial court can easily dispose of these cases on a motion for
summary judgment. In a case like the one at bar, however, substantial harm may
come from allowing a plaintiff to compel the disclosure of an anonymous
defendant’s identity by simply showing that his complaint can survive a motion to
dismiss or that it was filed in good faith. As we intimated in Ramunno, a summary
judgment proceeding can dispense with weak or even “silly” libel cases before trial
(but even then only after significant expense and anxiety to the parties). Applying a
summary judgment standard to a public figure defamation plaintiff’s discovery
request to obtain an anonymous defendant’s identity will more appropriately
protect against the chilling effect on anonymous First Amendment internet speech
that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass
or to unmask their critics.
14
Another court has addressed this issue and reached the same conclusion. In
Dendrite Intl., Inc. v. Doe37, an intermediate New Jersey appellate court adopted a
standard more stringent than either the motion to dismiss or the good faith
standard. Dendrite involved a corporate defamation plaintiff seeking to obtain the
identity of an anonymous defendant who posted comments about the corporation
on an internet message board. The Dendrite court held that to decide whether to
grant discovery to a plaintiff, a court should carefully review the complaint, and all
information provided to the court in addition to the complaint, to determine if the
plaintiff has set forth a prima facie cause of action against the fictitiously named
anonymous defendants.38 The court went on to say:
n addition to establishing that its action can withstand a motion to
dismiss for failure to state a claim for which relief can be granted
pursuant [to New Jersey court rules], the plaintiff must produce
sufficient evidence supporting each element of its cause of action, on
a prima facie basis, prior to a court ordering the disclosure of the
identity of the unnamed defendant.39
Applying its standard to the facts of the case before it, the Dendrite Court
held that:
[a]lthough [the corporation’s] defamation claims would survive a
traditional motion to dismiss for failure to state a cause of action, we
conclude the motion judge appropriately reviewed [the corporation’s]
37
775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
38
Id. at 760.
39
Id.
15
claim with a level of scrutiny consistent with the procedures and
standards we adopt here today, and therefore the judge properly found
[the corporation] should not be permitted to conduct limited discovery
aimed at disclosing [Doe’s] identity.40
We conclude that the summary judgment standard is the appropriate test by
which to strike the balance between a defamation plaintiff’s right to protect his
reputation and a defendant’s right to exercise free speech anonymously. We
accordingly hold that before a defamation plaintiff can obtain the identity of an
anonymous defendant through the compulsory discovery process he must support
his defamation claim with facts sufficient to defeat a summary judgment motion.
We do not, however, specifically adopt the holding in Dendrite. As originally set
forth, the Dendrite test has four parts. It requires a plaintiff:
(1) to undertake efforts to notify the anonymous poster that he is the
subject of a subpoena or application for an order of disclosure,
and to withhold action to afford the anonymous defendant a
reasonable opportunity to file and serve opposition to the
application. In the internet context, the plaintiff’s efforts should
include posting a message of notification of the discovery request
to the anonymous defendant on the same message board as the
original allegedly defamatory posting;
(2) to set forth the exact statements purportedly made by the
anonymous poster that the plaintiff alleges constitute defamatory
speech; and
(3) to satisfy the prima facie or “summary judgment standard.”41
40
Id. at 771.
41
Id. at 760.
16
Finally, after the trial court concludes that the plaintiff has presented a prima
facie cause of action, the Dendrite test requires the trial court to:
(4) balance the defendant’s First Amendment right of anonymous
free speech against the strength of the prima facie case presented
and the necessity for the disclosure of the anonymous defendant’s
identity in determining whether to allow the plaintiff to properly
proceed.42
We retain the notification provision in the Dendrite test. Thus, to the extent
reasonably practicable under the circumstances, the plaintiff must undertake efforts
to notify the anonymous poster that he is the subject of a subpoena or application
for order of disclosure. The plaintiff must also withhold action to afford the
anonymous defendant a reasonable opportunity to file and serve opposition to the
discovery request. Moreover, when a case arises in the internet context, the
plaintiff must post a message notifying the anonymous defendant of the plaintiff’s
discovery request on the same message board where the allegedly defamatory
statement was originally posted.
The notification provision imposes very little burden on a defamation
plaintiff while at the same time giving an anonymous defendant the opportunity to
respond. When First Amendment interests are at stake we disfavor ex parte
discovery requests that afford the plaintiff the important form of relief that comes
from unmasking an anonymous defendant. While in this case a Federal Statute
Id. at 760-761.
17
required that Comcast notify Doe of Cahill’s discovery request, in future cases this
type of statute may not exist. Accordingly, regardless of the medium in which the
allegedly defamatory statement is published, the plaintiff must undertake
reasonable efforts to notify the anonymous defendant of the discovery request and
must withhold action to allow the defendant an opportunity to respond.
While the first prong of the Dendrite test adds a layer of protection to a
defendant’s First Amendment right to speak anonymously in addition to the
showing required under the summary judgment standard, we do not think that the
second and fourth prongs of the Dendrite test are necessary. The second
requirement, that the plaintiff set forth the exact defamatory statements, is
subsumed in the summary judgment inquiry. To satisfy the summary judgment
standard a plaintiff will necessarily quote the defamatory statements in his
complaint. The fourth Dendrite requirement, that the trial court balance the
defendant’s First Amendment rights against the strength of the plaintiff’s prima
facie case is also unnecessary. The summary judgment test is itself the balance.
The fourth requirement adds no protection above and beyond that of the summary
judgment test and needlessly complicates the analysis. Accordingly, we adopt a
modified Dendrite standard consisting only of Dendrite requirements one and
three: the plaintiff must make reasonable efforts to notify the defendant and must
satisfy the summary judgment standard.
18
III.
D.
The Cahills argue that the Delaware Constitution gives great weight to the
importance of affording remedies to recompense damage to one’s reputation and,
accordingly, we should adopt a good faith standard for deciding discovery requests
to unmask anonymous defendants in defamation cases. We disagree. As we noted
recently in Kanaga v. Gannett Co.,43 two sections of the Delaware Bill of Rights
are applicable in a case that involves the balancing of the First Amendment right to
speak and an individual’s right to protect his reputation: Article I, Section 5 and
Article I, Section 9. The relevant portion of Section 5 provides:
The press shall be free to every citizen who undertakes to examine the
official conduct of persons acting in a public capacity; and any citizen may
freely speak, write and print on any subject, being responsible for the abuse
of that liberty.44
Similarly, Section 9, the so-called “remedies” or “open courts” clause, provides in
relevant part:
[a]ll courts shall be open; and every man for an injury done him in his
reputation, person, movable or immovable possessions, shall have
remedy by the due course of law, and justice administered according
to the very right of the cause and the law of the land, without sale,
denial, or unreasonable delay or expense....45
43
687 A.2d 173 (Del. 1996).
44
DEL. CONST. art. I, § 5., (emphasis added).
45
DEL. CONST. art. I, § 9. (emphasis added).
19
In Kanaga we interpreted these clauses to establish a “strong state constitutional
basis for remedies to recompense damage to one’s reputation.”46 Accordingly, “the
protection afforded to reputations by the Delaware Constitution weighs heavily in
the balance of the analysis involving constitutionally protected speech.”47 Although
those provisions of the Delaware Constitution “weigh in the balance” of our
analysis in the case at bar, that weight is not conclusive. We are required to weigh
against those provisions the fact that this case, unlike Kanaga, involves a public
figure and political speech. Moreover and more importantly, as noted above, we
must also weigh the fact that allowing a defamation plaintiff to unmask an
anonymous defendant’s identity through the judicial process is a crucial form of
relief that if too easily obtained will chill the exercise of First Amendment rights to
free speech. Kanaga did not address these important values; it is, therefore,
distinguishable.
In Kanaga we addressed the issue of when allegedly defamatory speech
could qualify as “opinion” and thereby become entitled to protection under the
First Amendment. We noted that a statement of opinion “would be actionable if it
implies the allegation of undisclosed defamatory facts as the basis for the
46
Id. at 177.
47
Id.
20
opinion.”48 Kanaga offers little, if any, guidance on how to effect a balance
between one individual’s right to protect his reputation and another’s right to
engage anonymously in speech protected by the First Amendment. Given those
countervailing concerns, we are unable to conclude that the Delaware
Constitution’s reference to protecting one’s reputation strongly supports setting the
showing a plaintiff must make to unmask an anonymous defendant at the low
thresholds of the good faith or motion to dismiss standards. A summary judgment
standard more appropriately balances a defamation plaintiff’s right to protect his
reputation and a defendant’s right to speak anonymously.
III.
E.
Although a good faith or motion to dismiss standard sets the bar too low to
protect a defendant’s First Amendment right to speak anonymously on the internet,
a summary judgment standard does not correspondingly set the bar too high for a
defamation plaintiff seeking redress for reputational harm to obtain relief. What
follows are our reasons for reaching this conclusion.
In deciding a motion for summary judgment, “a trial court shall examine the
factual record and make reasonable inferences therefrom in the light most
favorable to the nonmoving party to determine if there is any dispute of material
Id. at 179.
21
fact.”49 “[I]f from the evidence produced there is a reasonable indication that a
material fact is in dispute or if it appears desirable to inquire more thoroughly into
the facts in order to clarify application of the law, summary judgment is not
appropriate.”50 Thus, to obtain discovery of an anonymous defendant’s identity
under the summary judgment standard, a defamation plaintiff “must submit
sufficient evidence to establish a prima facie case for each essential element of the
claim in question.”51 In other words, the defamation plaintiff, as the party bearing
the burden of proof at trial, must introduce evidence creating a genuine issue of
material fact for all elements of a defamation claim within the plaintiff’s control.
Under Delaware law, a public figure defamation plaintiff in a libel case must
plead and ultimately prove that: 1) the defendant made a defamatory statement; 2)
concerning the plaintiff; 3) the statement was published; and 4) a third party would
understand the character of the communication as defamatory.52 In addition, the
public figure defamation plaintiff must plead and prove that 5) the statement is
false53 and 6) that the defendant made the statement with actual malice.54 Finally,
49 AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., 871 A.2d 428, 444 (Del. 2005).
50 Id.
51 Colgain v. Oy-Partek Ab (In re Asbestos Litig.), 799 A.2d 1151, 1152 (Del. 2002).
52 Read v. Carpenter, 1995 WL 945544, *2; 1995 Del. Super. LEXIS 251 (Del. Super.
1995).
Philadelphia Newspapers v. Hepps., 475. U.S. 767 (1986).
22
“[p]roof of damages proximately caused by a publication deemed libelous need not
be shown in order for a defamed plaintiff to recover nominal or compensatory
damages.”55
The first element is perhaps the most important. Whether or not a statement
is defamatory is a question of law.56 In answering this question, Delaware courts
must determine: “first, whether alleged defamatory statements are expressions of
fact or protected expressions of opinion; and [second], whether the challenged
statements are capable of a defamatory meaning.”57 Because this question is one of
law, a judge can just as easily make the determination under a summary judgment
standard as under a motion to dismiss standard or a good faith standard. The judge
will have before him the allegedly defamatory statements and can determine
whether they are defamatory based on the words and the context in which they
were published. In short, insofar as the question is one of law, the summary
54
New York Times v. Sullivan, 376 U.S. 254 (1964).
55
Spence v. Funk, 396 A.2d 967, 970 (Del. 1978). Doe and the amici curiae in this case
argue extensively that we should change Delaware libel law to require that a libel plaintiff must
plead and prove damages. This is contrary to the settled law of libel. As we noted in Spence
“[t]he general rule is that any publication which is libelous on its face is actionable without
pleading or proof of special damages.” We see no reason to change this rule here.
56
Riley v. Moyed, 529 A.2d 248, 251 (Del. 1987).
57
Id.
23
judgment standard imposes no heavier burden than would any other standard with
respect to the first element.
The second element of a libel claim requires that the plaintiff show that the
allegedly defamatory statement concerns the plaintiff. In most cases, this will be
apparent from the face of the statement. In cases where it is not facially apparent,
to satisfy this element the plaintiff can, by affidavit or verified complaint, offer
particular facts that establish that the statement refers to him. For example,
additional factual averments might be necessary when the allegedly defamatory
statement refers to the plaintiff by a nickname.
The plaintiff should also have easy access to proof that the statement was
published. He can produce a computer print-out of the statements made over the
internet or simply direct the court to the specific website where the statements were
made should they still be available.
With respect to the fourth element of a libel claim, the plaintiff can present
third party affidavits demonstrating a third party’s understanding of the statements
as defamatory. Similarly, to establish the fifth element of the public figure
defamation claim, which requires some proof that the statement is false, the
plaintiff can offer his own factually based averment that the statements are false.
Finally, we are mindful that public figures in a defamation case must prove
that the defendant made the statements with actual malice. Without discovery of
24
the defendant’s identity, satisfying this element may be difficult, if not impossible.
Consequently, we do NOT hold that the public figure defamation plaintiff is
required to produce evidence on this element of the claim. We hold only that a
public figure plaintiff must plead the first five elements and offer prima facie proof
on each of the five elements to create a genuine issue of material fact requiring
trial. In other words, a public figure defamation plaintiff must only plead and prove
facts with regard to elements of the claim that are within his control.
Given that the plaintiff will have easy access to proof of five of the six
elements of a defamation claim, it is not overly burdensome to require the plaintiff
to submit a verified complaint or affidavits to substantiate that claim. In short,
under the summary judgment standard, scrutiny is likely to reveal a silly or trivial
claim, but a plaintiff with a legitimate claim should be able to obtain the identity of
an anonymous defendant and proceed with his lawsuit. Delaware trial judges will
then still provide a potentially wronged plaintiff with an adequate means of
protecting his reputation thereby assuring that our courts remain open to afford
redress of injury to reputation caused by the person responsible for abuse of the
right to free speech.58
Besides the legal remedies available to a plaintiff wronged by internet
defamation, the potential plaintiff has available a very powerful form of extra-
See DEL. CONST. art. I, § 5, 9.
25
judicial relief. The internet provides a means of communication where a person
wronged by statements of an anonymous poster can respond instantly, can respond
to the allegedly defamatory statements on the same site or blog, and thus, can,
almost contemporaneously, respond to the same audience that initially read the
allegedly defamatory statements. The plaintiff can thereby easily correct any
misstatements or falsehoods, respond to character attacks, and generally set the
record straight. This unique feature of internet communications allows a potential
plaintiff ready access to mitigate the harm, if any, he has suffered to his reputation
as a result of an anonymous defendant’s allegedly defamatory statements made on
an internet blog or in a chat room.59
III.
F.
In adopting the summary judgment standard to govern situations where a
defamation plaintiff seeks to obtain the identity of an anonymous defendant, we do
not rely on the nature of the internet as a basis to justify our application of the legal
standard. That is, we make no distinction between communications made on the
internet and those made through other traditional forms of media in determining
the standard to be applied. Thus, whenever a defamation plaintiff seeks to unmask
Indeed, in this case, it appears that Cahill responded to some of his critics on the same
internet blog.
26
an anonymous defendant, we apply the summary judgment standard regardless of
the chosen medium of publication. While as a form of communication the internet
is not legally distinct and warrants no special protection above and beyond what
traditional forms of communication receive, it is worth noting that certain factual
and contextual issues relevant to chat rooms and blogs are particularly important in
analyzing the defamation claim itself.
Ranked in terms of reliability, there is a spectrum of sources on the internet.
For example, chat rooms and blogs are generally not as reliable as the Wall Street
Journal Online.60 Blogs and chat rooms tend to be vehicles for the expression of
opinions; by their very nature, they are not a source of facts or data upon which a
reasonable person would rely. At least three courts have recently made this
observation. Addressing the issue as it related to statements made in a chat room
about the performance of a specific publicly traded company, the Court in Rocker
Mgmt., LLC v. John Does 1 through 20, 61 noted that the messages tended to be
“replete with grammar and spelling errors; most posters do not even use capital
letters. Many of the messages are vulgar and offensive, and are filled with
60
Available at online.wsj.com.
61
2003 U.S. Dist. LEXIS 16277, *5 (N.D. Cal. 2003).
27
hyperbole.” The court continued, “in this context, readers are unlikely to view
messages posted anonymously as assertions of fact.”62
Another federal court has similarly noted, “nlike…traditional media,
there are no controls on the postings. Literally anyone who has access to the
internet has access to the chatrooms.”63 Moreover, “the statements were posted in
the general cacophony of an internet chat-room in which about 1,000 messages a
week are posted….”64 “Importantly, the postings are full of hyperbole, invective,
short-hand phrases and language not generally found in fact-based
documents….To put it mildly, these postings…lack the formality and polish
typically found in documents in which a reader would expect to find fact.”65 The
court concluded that the general tone, context, style and content of the postings
“strongly suggest that they are the opinions of the posters.”66 Accordingly, the
“reasonable reader, looking at the hundreds and thousands of postings about the
62 Id.
63 Global Telemedia Int'l, Inc. v. Doe 1, 132 F. Supp. 2d 1261, 1264 (C.D. Cal. 2001).
64 Id at 1267.
65 Id.
66 Id.
28
company from a wide variety of posters, would not expect that [the defendant] was
airing anything other than his personal views….”67
In SPX Corp v. Doe68 the court granted a defendant’s motion to dismiss a
defamation claim. In so doing the court analyzed four factors: “(1) the specific
language used; (2) whether the statement is verifiable; (3) the written context of the
statement; and (4) the broader social context in which the statement is made.”69 In
addressing the fourth factor, the court noted:
Statements appearing in such locations as forum and commentary
newspaper sections, or other venues often associated with "cajoling,
invective, and hyperbole", are more likely opinion…. Here, the
Defendant's statements were posted on an Internet message board.
Such message boards are accessible to anyone of the tens of millions
of people in this country (and more abroad) with Internet access, and
no one exerts control over the content. Pseudonym screen names are
the norm. A reasonable reader would not view the blanket,
unexplained statements at issue as "facts" when placed on such an
open and uncontrolled forum. Indeed, Yahoo! places a disclaimer
which appears on the copies of the postings submitted with the
Complaint:
Reminder. This board is not connected with the company. These
messages are only the opinion of the poster…70
67
Id. at 1268.
68
253 F.Supp. 2d 974 (N.D. Ohio 2003).
69
Id. at 980.
70
Id. at 981 (citations omitted).
29
Apart from the editorial page, a reasonable person reading a newspaper in
print or online, for example, can assume that the statements are factually based and
researched. This is not the case when the statements are made on blogs or in chat
rooms. “When one views…allegedly defamatory statements in context – both the
immediate context and the broader social context – it becomes apparent that many
of the allegedly defamatory statements cannot be interpreted as stating actual facts,
but instead are either ‘subjective speculation’ or ‘merely rhetorical hyperbole.’” 71
III.
G.
Having adopted a summary judgment standard, we now apply it to the facts
of this case. Normally an appellate court does not decide summary judgment
motions in the first instance. A trial judge’s decision to grant or reject summary
judgment, however, is a matter of law72 that we review de novo.73 Accordingly,
because we are deciding only a legal question on the same paper record, and given
the social interest in the prompt resolution of this dispute, we decide the issue
without remanding this case to the trial court.
71 Lidsky, supra note 7 at 939 (citations omitted).
72 Del. Super. Ct. Civ. R. 56(c).
73 Plummer v. Sherman, 861 A.2d 1238, 1242 (Del. 2004).
30
In deciding whether or not a statement is defamatory we determine, “first,
whether alleged defamatory statements are expressions of fact or protected
expressions of opinion; and [second], whether the challenged statements are
capable of a defamatory meaning.”74 In this case, Doe made two potentially
defamatory statements:
1) Anyone who has spent any amount of time with Cahill would be
keenly aware of … [his]character flaws, not to mention an obvious
mental deterioration;
2) Gahill [sic] is … paranoid.
Applying a good faith standard, the trial judge concluded, “it is enough to meet the
‘good faith’ standard that the Cahills articulate a legitimate basis for claiming
defamation in the context of their particular circumstances.”75 He continued
“[g]iven that Mr. Cahill is a married man, [Doe’s] statement referring to him as
“Gahill” might reasonably be interpreted as indicating that Mr. Cahill has engaged
in an extra-marital same-sex affair. Such a statement may form the basis of an
actionable defamation claim.”76 We disagree. Using a “G” instead of a “C” as the
first letter of Cahill’s name is just as likely to be a typographical error as an
intended misguided insult. Under the summary judgment standard, no reasonable
74
Riley, 529 A.2d at 251.
75
Memorandum Opinion, C.A. No. 04C-11-022, June 14, 2005 at 20.
76
Id.
31
person would interpret this statement to indicate that Cahill had an extra-marital
same-sex affair. With respect to Doe’s other statements, the trial judge noted:
Again, the context in which the statements were made is probative.
[Doe’s] statements might give the reader the impression that [Doe]
has personal knowledge that Mr. Cahill’s mental condition is
deteriorating and that he is becoming “paranoid.” Given that Mr.
Cahill is a member of the Smyrna Town Council, an elected position
of public trust, the impression that he is suffering from diminished
mental capacity might be deemed capable of causing harm to his
reputation, particularly when disseminated over the internet for all of
his constituents to read.77
We agree that the context in which the statements were made is probative, but
reach the opposite conclusion. Given the context, no reasonable person could have
interpreted these statements as being anything other than opinion. The guidelines at
the top of the blog specifically state that the forum is dedicated to opinions about
issues in Smyrna. If more evidence of that were needed, another contribution to the
blog responded to Doe’s second posting as follows: “Proud Citizen, you asked for
support, I don’t think you are going to get it here. Just by reading both sides, your
tone and choice of words is [that of] a type of person that couldn’t convince me.
You sound like the person with all the anger and hate…”
At least one reader of the blog quickly reached the conclusion that Doe’s
comments were no more than unfounded and unconvincing opinion. Given the
context of the statement and the normally (and inherently) unreliable nature of
Id. at 21
32
assertions posted in chat rooms and on blogs, this is the only supportable
conclusion. Read in the context of an internet blog, these statements did not imply
any assertions of underlying objective facts. Accordingly, we hold that as a matter
of law a reasonable person would not interpret Doe’s statements as stating facts
about Cahill. The statements are, therefore, incapable of a defamatory meaning.
Because Cahill has failed to plead an essential element of his claim, he ipso facto
cannot produce prima facie proof of that first element of a libel claim, and thus,
cannot satisfy the summary judgment standard we announce today. Doe’s
statements simply are not sufficient to give rise to a prima facie case for
defamation liability.78
IV.
For these reasons, we REVERSE the judgment of the Superior Court and
REMAND the case to the Superior Court with instructions to DISMISS the
plaintiff’s claim with prejudice.
We do not hold as a matter of law that statements made on a blog or in a chat room can
never be defamatory. We hold only that in order to recover, a plaintiff having a defamation claim
based on a statement made in an internet chat room or on a blog must prove that a statement is
factually based and thus capable of a defamatory meaning. See Kanaga, 687 A.2d at 179 (“[A]
statement of opinion would be actionable if it implies the allegation of undisclosed defamatory
facts as the basis for the opinion.”)
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