In light of our recent discussion of Bartnicki v. Vopper and the legality of publishing information that was illegally obtained by a third party, this recent case from New Hampshire drew our attention.
In early November, the New Hampshire Supreme Court heard arguments in a case involving a website's refusal to identify the author of a post that criticized mortgage lender The Mortgage Specialists Inc. The site, Mortgage Lender Implode-O-Meter, had posted a story concerning a state investigation into MSI for, among other things, allegedly forging signatures and destroying documents. The site also posted a copy of a document MSI had prepared for the state Banking Department. The document, which was provided by an anonymous source, is supposed to be confidential under state law.
In addition, someone calling themself “Brianbattersby” posted a comment on the site accusing MSI President Michael Gill of fraud.
MSI demanded that the website, owned by Implode-Explode Heavy Industries, remove the document and the anonymous comment, identify the identify of the person who leaked the document, and agree not to republish the document in the future. The website agreed to the first request, but refused the second and third.
MSI then sued in state court for both the identity of "Brianbattersby" and the person who leaked the confidential document. This spring, a county judge ordered the website to disclose the information MSI sought and enjoined the site from further publication of the confidential chart.
The trial court decision is troubling for several reasons. First, the court acknowledges, but then does not address in any substantive way, the website's argument that the statute relied on by MSI and the court only covers state authorities' conduct and does not make it illegal for a third party to publish the document at issue. Rather, the court seems to assume publication is illegal and makes much of the fact that no penalties are being assessed or sought against the website.
The United States Supreme Court in Florida Star v. BJF held that a newspaper could not be punished for publication of truthful material lawfully obtained "absent a need to further a state interest of the highest order." In the New Hampshire case, there is no allegation that the website obtained the document illegally, only that its publication was illegal. Furthermore, the fact that the website in this case is not subject to penalties seems legally irrelevant, as it is being restrained from publishing truthful, lawfully obtained, information.
Second, in forcing the website to disclose the identity of "Brianbattersby," the court engaged in no analysis of the speaker's right to post anonymously. As we have discussed previously, the clear trend nationally is to require a plaintiff seeking the identity of an anonymous speaker accused of defamation to meet some elevated pleading standard. There is no indication that anything of the sort was required here.
Finally, it is worth noting that New Hampshire is one of the few states without any kind of shield law, meaning that the website has far less legal recourse when asked to reveal the identity of its source for the document.
We are awaiting a decision from the New Hampshire Supreme Court and will report on it once it's handed down.
Add a comment
Archives
- January 2022
- June 2021
- March 2020
- August 2019
- March 2019
- October 2018
- July 2016
- June 2016
- May 2016
- February 2016
- November 2015
- September 2015
- July 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- July 2014
- March 2014
- July 2013
- June 2013
- April 2013
- March 2013
- October 2012
- September 2012
- August 2012
- April 2012
- March 2012
- February 2012
- January 2012
- November 2011
- September 2011
- June 2011
- May 2011
- April 2011
- February 2011
- January 2011
- December 2010
- October 2010
- September 2010
- August 2010
- July 2010
- June 2010
- May 2010
- April 2010
- March 2010
- February 2010
- January 2010
- December 2009
- November 2009
- October 2009
- September 2009
- August 2009
- July 2009
- June 2009
- May 2009
- April 2009
- March 2009
- February 2009
- January 2009
- December 2008
- November 2008
- October 2008
- September 2006
- February 2006
Recent Posts
- Rethinking Your Cyber Insurance Needs as Your Workplace Evolves
- Data Breach Defense for Educational Institutions
- COVID-19 and the Increased Cybersecurity Risk in a Work-From-Home World
- Like Incorporating Facebook into your Website? EU Decision Raises New Issues
- Lessons Learned: Key Takeaways for Every Business from the Capital One Data Breach
- Will Quick Talks to WRAL About Privacy Issues Related to Doorbell Cameras
- About Us
- Not in My House - California to Regulate IoT Device Security
- Ninth Circuit Says You’re Going to Jail for Visiting That Website without Permission
- Ninth Circuit Interprets “Without Authorization” under the Computer Fraud and Abuse Act
Topics
- Data Security
- Data Breach
- Privacy
- Defamation
- Public Records
- Cyberattack
- FCC Matters
- Reporters Privilege
- Political Advertising
- Newsroom Subpoenas
- Shield Laws
- Internet
- Miscellaneous
- Digital Media and Data Privacy Law
- Indecency
- First Amendment
- Anti-SLAPP Statutes
- Fair Report Privilege
- Prior Restraints
- Education
- Wiretapping
- Access to Courtrooms
- FOIA
- HIPAA
- Drone Law
- Access to Search Warrants
- Access to Court Dockets
- Intrusion
- First Amendment Retaliation
- Mobile Privacy
- Newsroom Search Warrants
- About This Blog
- Disclaimer
- Services