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New York Law Journal “Procedural Chickens and Eggs: Obtaining Pre-Suit Disclosure To Identify Necess

For better or worse, anonymity has long been a fundamental feature of Internet communication, particularly in large-scale Internet communities and on websites that permit public comments. The ability to provide unvarnished opinions in an open forum without fear of reprisal can be valuable, but it can also (unsurprisingly) lead to some very bad behavior. Different online communities deal with that undesirable behavior in different ways, such as moderation policies, membership or commenting restrictions, or online “social” pressures or norms. Some even choose not to deal with it at all. As a general matter, the providers and users of online services are shielded from liability for content posted by others by §230 of the Communications Decency Act (47 U.S.C. §230(c)). But the anonymous posters themselves are not immune from liability for their own fraudulent, defamatory, or otherwise actionable comments.

That, of course, presents a problem. In many cases, as users of these services or consumers of online information posted anonymously (or pseudonymously), aggrieved parties have no way of knowing anything about the person on the other side of the net. If, say, a company wants to address a false statement made about it on a review site, it may have the legal means to do so under certain circumstances, for example, through an action for defamation. But it cannot bring that action against the review site itself—the site is protected under §230. It must first determine who made the defamatory posting and bring an action against that user individually. And while some large, commercial websites include policies and procedures for addressing that kind of problem, either through “take-down” notices or other non-judicial proceedings, many do not. Further, in the absence of a judicial order, such services may be reluctant to disclose confidential information about their users or even to identify them.

Fortunately, at least in New York, there is a procedural rule, CPLR §3102, that can be used to circumvent some of those issues and provide early judicial intervention to pierce the veil of anonymity where a court deems it necessary and appropriate. Read more.

This article first appeared in the New York Law Journal on March 23, 2020. Jack Millson, an associate at the firm, provided substantial assistance with the preparation of this article.

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