Maryland's highest court has adopted the five-step test set forth in Dendrite Int'l, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), to determine whether to compel discolsure of anonymous speakers online.  The case is Independent Newspapers, Inc. v. Zebulon J. Brodie, No. 63, September Term 2008.  The opinion is available here.

 

The plaintiff in the case, a Dunkin' Donuts franchisee, sued Independent Newspapers, owner of the website NewsZap.com and three anonymous people who posted comments on the website.  The plaintiff alleged one count of defamation and one count of civil conspiracy in connection with the posters' comments about the cleanliness of restaurant.  The plaintiff attempted to compel disclosure of the identities of the anonymous posters.  Independent Newspapers moved to quash, claiming such information was protected from disclosure by the First Amendment.

 

The trial court denied the motion to quash, and Independent Newspapers appealed.  The Maryland Court of Appeals reversed, but on the ground that the plaintiff failed to identify the correct posters in his complaint.

 

Nevertheless, the court adopted the Dendrite test as a guide to parties in future cases.  Under the Dendrite test, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

Although courts are not in complete agreement, the Dendrite test is emerging as the leading test across jurisdictions in anonymous Internet speaker cases.  That said, it would not surprise us if the Supreme Court of the United States reviews this issue in the near future.