Gallucci v. New Jersey On-Line LLC

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Gallucci v. New Jersey On-Line LLC [1] was a lawsuit filed on February 5, 2007 in the Superior Court of New Jersey by Michael Gallucci, a former town councilman in Teaneck, New Jersey, against New Jersey On-Line, LLC (NJ.com), which maintains a number of Internet forums. The case promised to have an impact on how the law views anonymous Internet postings and the liability and obligations of companies who facilitate those postings. However, on November 15, 2007 the northern New Jersey newspaper The Record (Bergen County) reported that Gallucci had withdrawn the lawsuit. Lawyers for Gallucci and for NJ.com offered no explanation for the withdrawal, although the lawyer representing Gallucci said the case had been resolved.[1]

Gallucci sued New Jersey On-Line for revealing identifying information about him in response to a court subpoena filed by William Brennan following a heated exchange on an NJ.com message board. Gallucci’s complaint alleged that NJ.com unlawfully released this information, violating its confidentiality contract with Gallucci as well as procedures established in Dendrite International, Inc. v. Doe [2], a 2000 New Jersey case that set forth standards for the enforcement of subpoenas against anonymous writers [3].

A less ambiguous outcome to this case could have clarified the limit or expanded the application of Dendrite’s standards to internet service providers (ISPs) [4] (see "Dendrite Effect" in this article below). At this time it is unclear what effect it will have on ISPs when confronted with similar situations. However, a recent court action involving anonymous postings on another NJ.com Internet forum suggests that New Jersey On-Line may no longer be providing perfunctory compliance with subpoenas for posters’ identities.

In a December 21, 2007 article of the Herald News, a sister paper of The Record published in Passaic County, New Jersey, it was reported that a local school board member’s attorney has asked a Superior Court judge to order NJ.com to release the names of posters who allegedly libeled the board member.[2]

Contents

[edit] Development of the Case

Brennan, at the time a firefighter employed by Teaneck, had been involved in litigation against the town for the better part of a decade, with some 10 lawsuits [5] for violation of his civil rights well as complaints of improper conduct on the part of public officials. He often posted comments on NJ.com’s Teaneck Forum that were very critical of the town and accusatory toward many of its officials.

Gallucci was a member of the Teaneck town council. During a five-day period in December of 2005, he anonymously engaged Brennan in a heated online exchange, posting under the moniker “AntiBrennan” and calling Brennan a "litigation terrorist," a "pathetic psychopath" and a "paranoid-delusional-over-paid-under-worked-sicko." Many of his postings were also highly critical of the Teaneck fire department.

Brennan subpoenaed NJ.com for the identity of “AntiBrennan” and others who had anonymously posted derogatory comments on the message board. The subpoena was issued in connection with a lawsuit Brennan had pending, Brennan v. Teaneck. According to Brennan’s lawyer in that case, Jonathan Nirenburg, he and his client were hoping the subpoena would uncover people connected to the suit [6]. As a Teaneck councilman, Gallucci was a named defendant, although none of his postings specifically mentioned Brennan v. Teaneck.

In an interview with Mary Pat Gallagher of the New Jersey Law Journal [7], Nirenberg said NJ.com responded quickly to the subpoena by turning over the posters' email addresses. He and Brennan “struck gold” with Gallucci’s email address, he said, because it contained his real name. Efforts were made to get the names of other posters with non-identifying email addresses, but Nirenberg said they “met more resistance” from the email providers [8].

Upon learning his identity, Brennan “outed” the councilman on the message board, which caused a local uproar. Gallucci was forced to resign and said he had to move away from Teaneck. He sued New Jersey On-Line for breach of contract, violating the site’s privacy policy when it provided his information to Brennan, and also for failure to follow procedures set forth in Dendrite. [9]]

Gallucci was represented in his suit by Public Citizen [10], a non-profit public interest group founded by Ralph Nader. Internet free speech is a major focus of the Public Citizen Litigation Group and, in the Dendrite case, it had jointly filed an amicus curiae brief [11] with the New Jersey chapter of the American Civil Liberties Union.

[edit] Dendrite Effect

In Dendrite [12], the decision stated that certain standards should be met before online facilitators could be compelled to reveal the identifying information of anonymous Internet posters. Those standards include notifying the person whose information is being subpoenaed, posting a message on the message board to notify the poster of the release of information, and giving the poster a chance to challenge the subpoena to protect his identity. [13] The question this case could have decided is summarized in a November 17, 2007 "Daily Briefing" of The New Jersey Lawyer [14]:

"New Jersey law already had established a plaintiff can't force an ISP to break a pledge of anonymity without taking certain legal steps, going beyond a simple subpoena; Gallucci was poised to test whether the ISP could be compelled to follow the same rules even if it was willing to cooperate. That's no longer in the cards now that Public Citizen has announced without explanation the suit has been withdrawn."

[edit] References

  1. ^ Ax, Joseph. "Ex-official drops suit against site", The Record (Bergen County), November 15, 2007. Accessed November 15, 2007.
  2. ^ Cunningham, Jennifer H. "School official files suit over insults on Web", Herald News, December 21, 2007. Accessed December 28, 2007.

[edit] External links