N.J. Suit Could Be Test Case for Anonymous Web Posts
By Mary Pat Gallagher
New Jersey Law Journal
02-26-2007
law.com.
A Bergen County, N.J., suit filed last week could emerge as a test case of a landmark ruling that set standards for piercing Internet anonymity.
Michael Gallucci, a former member of the Teaneck, N.J., Township Council, accuses a newspaper Web site of wrongfully releasing his identity as a poster, forcing him to resign from the elected post and leave town.
Gallucci claims that the Web site, nj.com, violated its privacy policy and failed to comply with standards established by New Jersey courts.
He asserts claims for breach of contract, privacy and fiduciary duty and for intentional and negligent infliction of emotional distress. He seeks compensatory and punitive damages as well as a declaration that would let other Internet service providers know not to repeat nj.com's actions.
The allegations in Gallucci v. New Jersey On-Line LLC raise issues about remedies for failure to comply with the safeguards for the protection of anonymous online speech enunciated in Dendrite International v. Doe, 342 N.J. Super. 134 (App. Div. 2001).
Gallucci's suit arose out of his message board postings that criticized Teaneck firefighter William Brennan, who had been locked in civil rights litigation with the township for a decade. In one case, Brennan v. Norton, 96-Civ.-4061, Brennan had won a $872,500 verdict, later reduced to $382,500, plus $630,000 in legal fees.
Brennan has been a frequent poster on nj.com's Teaneck-specific forum since its April 5, 2004, inception, boasting of his courtroom victories, taunting township officials and confronting his critics. His first post, from "FFBrennan" on April 11, 2004, was: "Has anyone asked why Teaneck spends 450 percent more (per capita) on litigation than any other town in the State of NJ?" A follow-up posting claimed the city's legal battles with him cost it more than $5 million.
In December 2005, Gallucci, writing under the moniker "AntiBrennan," got into a heated online exchange with Brennan, calling him a "litigation terrorist," a "pathetic psychopath" and a "paranoid-delusional, over-paid-under-worked sicko."
Brennan's responses referred to AntiBrennan as "another anonymous coward" and a "hateful beast." But he went beyond calling names.
He subpoenaed nj.com -- a site affiliated with 14 New Jersey newspapers, including The Star-Ledger, the Jersey Journal and the Trenton Times -- for information about several online critics, including AntiBrennan.
The subpoena was issued in January 2006 in Brennan v. Teaneck, BER-L-5884-03, and Brennan's lawyer in the case, Jonathan Nirenberg, says he was hoping to uncover a defendant in the case behind one of the screen names since it would help show animus to support Brennan's retaliation claim. Gallucci and the other Teaneck council members were named defendants in the case.
Nirenberg says nj.com responded quickly to the subpoena, providing several e-mail addresses, and he "struck gold" because Gallucci's address included his name. He says he tried to get the names behind the other addresses but met "more resistance" from the Internet providers for the e-mail accounts.
Two months later, Brennan settled his remaining claims with Teaneck for $2.5 million in a deal that required him to give up his job with the fire department, says Nirenberg, of East Hanover, N.J.'s Resnick, Nirenberg & Siegler.
"I was surprised by the lawsuit [against nj.com] because Gallucci was a party to the case and through counsel had at least constructive notice of the subpoena," says Nirenberg. But he also points out that Gallucci would have had to disclose his identity to contest the subpoena.
Gallucci claims he first learned last Jan. 5 his identity had been disclosed when Brennan posted a message on the site identifying him as AntiBrennan.
Gallucci posted an apology that same day, admitting it was "stupid for me to participate in an on-line forum with Mr. Brennan without indentifying [sic] myself."
On Jan. 6, Teaneck Mayor Jacqueline Kates announced she would call for Gallucci's resignation if he did not leave on his own. Under mounting pressure from the public and the council, he resigned on Jan. 23. But he alleges he continued to face harassment and ridicule, leading him to sell his home below market value and move from the township.
'DENDRITE' SAFEGUARDS
Gallucci contends that nj.com violated its privacy policy when it gave out his information. The policy says it will disclose user information when "legally required," but nj.com allegedly did not comply with the safeguards in Dendrite.
Dendrite requires a plaintiff who goes to court seeking the identity of an anonymous Internet poster to try to give notice, through a posting on the message board, so the target has an opportunity to oppose the attempted disclosure.
The plaintiff must specify which anonymous statements were actionable and provide enough evidence to make out a prima facie case on its claims.
The judge must then balance the strength of that case and the need to disclose the poster's identity against the First Amendment right of anonymous free speech.
The declaratory judgment Gallucci seeks is "a clear statement from the court that before an ISP releases a confidential speaker's identifying information, it must give the speaker notice and an opportunity to intervene," says his lawyer, Jennifer Soble, of Public Citizen in Washington, D.C., a consumer rights advocacy group that participated as amicus curiae in Dendrite.
Stephen Latimer of Hackensack, N.J.'s Loughlin & Latimer, local counsel for Gallucci, says "courts in New Jersey are very protective of virtual information," citing Dendrite and the Jan. 22 Appellate Division decision in State v. Reid, A-3424-05. Reid, which found a right to "informational privacy," reversed a conviction for computer-related theft because it was based on subscriber information obtained from Comcast using an invalid subpoena.
Sobel defines the issue in the Gallucci case as "the right to speak anonymously in a digital age and in an age where we all communicate via Web site."
Neil Rosenhouse, of New York's Sabin Bermant & Gould, who is general counsel for nj.com, says "we believe that the complaint does not accurately reflect the law and we are confident that our client will prevail." He declines further comment.
One day after Gallucci sued, Brennan commented about it on nj.com. In a post headed "Gallucci," he wrote, "he hates litigious people and now he's suing nj.com."
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