Tagged: Media Litigation

Online News Sources Have Standing to Protect Free Speech Rights for Anonymous Users, According to New Jersey Appellate Division

Online newspapers, internet service providers, and website hosts have standing to assert the constitutional rights of their users, according to the New Jersey Appellate Division’s recent unpublished decision in Trawinski v. Doe. In Trawinski, the Appellate Division affirmed the denial of a plaintiff’s request for a subpoena requiring NJ.com to disclose the identity of an anonymous commenter. Underlying plaintiff’s request were allegedly defamatory remarks made by an anonymous poster using the screen name “EPLifer2” concerning plaintiff and her husband, a borough council member of Elmwood Park.

In Refusing to Review Order Requiring Disclosure of Identities of Anonymous Internet Commentators, Pennsylvania Court Finds No Protectable First Amendment Interest in Maintaining Anonymity When One Comments Under Name of Real Person

In Amerisource Bergen Corporation v. John Does 1 and 2, the Superior Court of Pennsylvania recently held that two individuals who posted false and non-satirical comments to an online article under the name of an executive mentioned in the article had no protectable interest in their identities sufficient to invoke the collateral order doctrine and permit appellate review of a trial court order granting pre-complaint discovery of their identities, thus allowing an executive and his company to pursue claims against the posters for their unlawful appropriation of the executive’s name.

Law Division Holds Unfiled Discovery Protected From Common-Law Right of Access

The Law Division in a to-be-published opinion in Drinker Biddle & Reath LLP v. New Jersey Department of Law & Public Safety, Division of Law, recently held that public policy does not favor access to unfiled discovery in public sector litigation under New Jersey’s common-law right of access. Plaintiff filed a complaint in lieu of prerogative writs for failure to comply with the Open Public Records Act, (“OPRA”), and the common-law right of access in refusing to provide plaintiff with copies of unfiled transcripts of expert depositions in environmental litigation brought by the State of New Jersey, Department of Environmental Protection (“NJDEP”). Because the transcripts in their entirety had not been filed with the Court, NJDEP denied plaintiff’s OPRA request on privilege and confidentiality grounds.

Recent Developments Under New Jersey’s Open Public Records Act

New Jersey courts decided a trio of cases last month that shine a spotlight on the State’s Open Public Records Act (“OPRA”), which governs the disclosure of government records when requested by members of the public. These opinions — the holdings of which are summarized below — serve as important guideposts for practitioners litigating OPRA-related matters.

Plaintiff Limited to Nominal Presumed Damages in Defamation Case Absent Proof of Actual Harm

On May 21, 2012, the New Jersey Supreme Court issued a corrected Opinion in W.J.A. v. D.A.. In that Opinion, the Court held that presumed damages continue to play a role in New Jersey’s defamation jurisprudence in private plaintiff cases that do not involve matters of public concern. Where a plaintiff does not proffer any evidence of actual damage to reputation, the doctrine of presumed damages permits him/her to survive a motion for summary judgment and to obtain nominal damages if successful at trial. The Court emphasized, however, that in order to receive compensatory damages, a plaintiff must prove actual harm to his/her reputation.

Summary Judgment and the Actual Malice Standard in Defamation Cases

In Durando v. The Nutley Sun, the New Jersey Supreme Court confirmed that — absent clear and convincing evidence of actual malice — an admittedly incorrect “teaser headline” that refers readers to an accurate headline and story cannot be the basis of a defamation claim where a public figure or matter of public concern is at issue. By strictly adhering to this actual malice standard, the Court has reaffirmed the commitment of this State to protect speech regarding public figures and public matters, even erroneous speech, from the expense and chill of protracted litigation, by disposition of lawsuits at the summary judgment stage.

No Right of Access Under OPRA to Unfiled Discovery in NJDEP Litigation But Right of Access May Exist Under Common Law

Last month, in Drinker Biddle & Reath, L.L.P. v. New Jersey Department of Law and Public Safety, Division of Law, the Appellate Division held that un-filed discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection was not subject to access pursuant to New Jersey’s Open Public Records Act (“OPRA”). But the Court also found that access to such information could be compelled under the common law, depending on whether the plaintiff’s need for disclosure outweighed the State’s need for confidentiality, and remanded the matter to the trial court to conduct the appropriate balancing test.