One year after Michael Gallucci was exposed as an anonymous and often-incendiary commentator on a Web site hosted by a New Jersey Internet service provider (“ISP”) with ties to 14 newspapers in the state, the former Teaneck, N.J., councilman filed a lawsuit in a Superior Court of New Jersey. The complaint, dated Feb. 5, 2007, claimed that the ISP’s release of his identifying information was unlawful under New Jersey law and in breach of the user agreement entered into by Gallucci when he first subscribed to the service provided by New Jersey-Online, LLC (“NJ.com”).
As the Bulletin went to press, the ISP had not yet filed an answer to Gallucci’s complaint, but the case was being closely watched by free speech advocates around the nation and in New Jersey. The New Jersey Law Journal described the lawsuit as a “test case of a landmark ruling that [could] set standards for piercing Internet anonymity” across the nation.
The case may play a key role in the development of New Jersey law as well. In 2001, the state’s appellate court established procedures that ISPs should follow when third parties attempt to discover the identities of anonymous posters. Dendrite International Inc. v. Doe, 42 N.J. Super. 134 (App. Div. 2001). In Dendrite, a Morristown, N.J. company attempted to subpoena Yahoo!, Inc. to discover the identity of an anonymous poster that had used the company’s online bulletin board to post comments that the company believed to be defamatory. The trial court refused to issue the subpoena without further proof that the statements were defamatory or that the company was actually harmed.
The state appellate court in Dendrite found that, upon receiving a request for an anonymous user’s personal information, the ISP should inform the user of the request. Moreover, the court found, a third party must actually show proof of a valid cause of action before an Internet company can be compelled to reveal a user’s identity. The value of anonymous speech on the Internet, according to the Dendrite court, merited “higher standards” of protection.
The lawsuit filed by Gallucci in February is expected to address the issue of whether an ISP can be held liable for failing to follow the procedures established by Dendrite in 2001. “[T]he Gallucci case may be the first time an ISP—and a news organization, at that—has actually been in the dock,” New Jersey Lawyer reported on Feb. 26, 2007. “While Dendrite established the process plaintiffs must use to force an ISP to disclose a person’s identity, this case may show whether the courts will force an ISP to protect that identity until ordered to give it up.”
The lawsuit stems from comments that were posted to online message boards accessible through NJ.com’s Web site. At the time, the Web site featured news and events related to communities in New Jersey and offered community members an opportunity to voice their opinions anonymously on the site’s message boards.
According to the complaint, in the weeks before Dec. 15, 2005, a NJ.com message board devoted to Teaneck contained “numerous anonymous postings that were critical of both the Teaneck fire department and [firefighter William J.] Brennan.” Earlier in the year, the Fire Department had left the scene of an emergency call hours before the house erupted in flame. Although it was ultimately discovered that the circumstances leading to the call were attributable to a malfunctioning boiler, whereas the fire was caused by an overloaded circuit breaker, the fire department received heavy criticism for failing to prevent the fire.
Brennan, a former Teaneck firefighter, was also the subject of criticism for his frequent involvement in litigation against the township. By mid-December 2005, Brennan was involved in ten lawsuits against Teaneck and individual members of the Teaneck Council. According to the New Jersey Law Journal, Brennan has been locked in civil rights litigation against the township, receiving a $1 million verdict in one of the ten cases Brennan filed over the last decade. The verdict was later reduced to approximately $382,000. Brennan v. Norton, 350 F.3d 399 (3rd Cir. 2003).
From Dec. 16, 2005 to Dec. 21, 2005, Gallucci anonymously posted comments to NJ.com’s Web site using the moniker “AntiBrennan.” According to the complaint, the comments posted by Gallucci were “extremely critical” of Brennan, describing the firefighter as a “litigation terrorist,” “Billy the Baby,” a “pathetic psychopath,” and a “paranoid –delusional-over-paid-under-worked-sicko.” Several of Gallucci’s comments were directed at the Teaneck Fire Department as well.
Brennan then subpoenaed NJ.com, seeking the identity of “AntiBrennan” and other anonymous posters using the message boards hosted by NJ.com. According to the New Jersey Law Journal, Brennan’s attorney, Jonathan Nirenberg, filed the subpoena on Brennan’s behalf in order to discover if the identities of “AntiBrennan” or other online posters would support the firefighter’s claims in a pending lawsuit against Teaneck, its town council, and individual council members.
According to the same report, Nirenberg said NJ.com responded quickly to the subpoena, providing Brennan’s counsel with a list of e-mail addresses associated with monikers used by anonymous posters on the message boards. Brennan was provided with a list of e-mails associated with the pseudonyms but met resistance from NJ.com when he attempted to learn the identity of the individual using the e-mail addresses given to Brennan. Gallucci, however, was readily identifiable because the e-mail address associated with the online identity included his name.
Gallucci, who first discovered that his name had been disclosed after Brennan posted a message on the NJ.com Web site identifying Gallucci as “AntiBrennan,” apologized for his role in the online exchange later that day. Despite posting his apology, Teaneck Mayor Jacqueline Kates publicly requested Gallucci’s resignation. After weeks of pressure from the public and town officials, Gallucci resigned on Jan. 23.
Once unmasked, Gallucci states in the complaint, he was publicly humiliated and scorned. “[U]nable to conduct his day-to-day business or maintain social ties in Teaneck without being subject to harassment and ridicule,” Gallucci later moved from the town, selling his home at a loss, and allegedly suffered from anxiety and insomnia.
As a result, Gallucci is seeking damages against NJ.com for emotional distress, economic loss and “reputational harm,” claiming that the ISP failed to follow procedures established in Dendrite to protect his identity.
According to the complaint, NJ.com acted recklessly, failing to notify Gallucci that the company had been subpoenaed. As a result, Gallucci claims, he was denied an opportunity to challenge the subpoena and Brennan was able to obtain his identity without having to show proof of an actionable cause.
Moreover, Gallucci claims, NJ.com had an obligation under its “User Agreement” to disclose a customer’s confidential identifying information “only when it was in his [or her] best interest, unless it followed the procedures set forth in New Jersey law.”
– Christopher Gorman
Silha Research Assistant