Digital Media and Data Privacy Law Blog

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.