Maxon v. Ottawa Publ'g Co.

• Decision Date: 01 June 2010
• Docket Number: No. 3-08-0805.,3-08-0805.
• Parties: Donald MAXON and Janet Maxon, Petitioners-Appellants,v.OTTAWA PUBLISHING COMPANY, a Delaware Limited Liability Company, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 704

929 N.E.2d 666

341 Ill.Dec. 12

Donald MAXON and Janet Maxon, Petitioners-Appellants,v.OTTAWA PUBLISHING COMPANY, a Delaware Limited Liability Company, Respondent-Appellee.

No. 3-08-0805.

Appellate Court of Illinois Third District.

June 1, 2010.

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George C. Hupp, Jr. (argued), Michael W. Fuller, Hupp, Lanuti, Irion & Burton, P.C., Ottawa, IL, for Donald Maxon.

Katherine Licup (argued), Michael Conway, Foley & Lardner LLP, Chicago, IL, for Ottawa Publishing Company.

Michael T. Reagan, Herbolsheimer, Lannon, Henson, Duncan & Reagan, PC, Ottawa, IL, Christopher T. Bavitz, Cyberlaw Clinic, Harvard Law School, David Ardia, Samuel Bayard, Berkman Center for Internet & Society, Cambridge, MA, Barbara W. Wall, Assoc. Gen. Counsel, Gannett Co., Inc., McLean, VA, Jonathan Donnellan, Hearst Corporation, New York, NY, Samuel Fifer, Natalie J. Spears, Sonnenschein Nath & Rosenthal LLP, Chicago, IL, Jonathan D. Hart, Dow Lohnes PLLC, Washington, DC, Gregory A. Beck, Public Citizen Litigation Group, Washington, DC, Lucy A. Dalglish, Gregg P. Leslie, Reporters Committee for Freedom of the Press, Arlington VA, Sal Karottki, Asst. General Counsel, Tribune Company, Chicago, IL, for Amicus Curiae Citizen Media Law Project.

Presiding Justice HOLDRIDGE delivered the opinion of the court:

Petitioners, Donald and Janet Maxon (the Maxons), appeal from an order of the circuit court of La Salle County dismissing their amended petition for discovery pursuant to Supreme Court Rule 224 (134 Ill.2d R. 224). The amended petition sought disclosure from respondent Ottawa Publishing Company (Ottawa Publishing) of identifying information concerning the persons responsible for certain comments posted on Ottawa Publishing's Web site, which the Maxons alleged were defamatory. Ottawa Publishing resisted the petition, arguing that the poster's anonymity was constitutionally protected. Ottawa Publishing maintained that, in accordance with a growing trend in other jurisdictions, trial courts in Illinois must take extra steps to protect the anonymity of internet posters. See Dendrite International, Inc. v. Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756 (2001); Doe v. Cahill, 884 A.2d 451 (Del.2005). The trial court adopted the analysis articulated in Dendrite and Cahill and dismissed the amended petition, finding that the Maxons had failed to establish that the statements at issue were defamatory. On appeal, the Maxons argue that the dismissal of their petition should be reversed because: (1) the trial court erred in subjecting their petition to the heightened degree of scrutiny required under Dendrite and Cahill; and (2) the trial court erred in finding that the allegedly defamatory statements were not defamatory as a matter of law.

FACTS

Ottawa Publishing publishes The Times, a daily newspaper for general circulation in and around Ottawa, Illinois, as well as an online Internet version of the same newspaper at its web site, MyWebTimes.com (MyWebTimes). Unlike traditional letters to the editor, which must be chosen for publication by the editorial staff of a newspaper, readers of the Internet version may anonymously post comments to a comments section following each article published on the website. Any individual may post his or her unedited comments on MyWebTimes after they complete an online registration. This registration process requires that each person who wishes to post comments establish a unique “screen name” (usually, but not necessarily, a pseudonym), a password for the screen name, and a valid e-mail address so that Ottawa Publishing can communicate with that person individually. Ottawa Publishing does not require or retain additional information such as name, address or telephone number from registered participants, nor does it seek to verify that the e-mail address remains valid after the account is activated. Thus, the only identifying information that Ottawa Publishing had was an e-mail address purported to be a valid means of contacting the anonymous poster.

On March 20, 2008, Ottawa Publishing published an article on MyWebTimes titled: “OTTAWA: Commissioners favor B & B additions, changes.” The subject of the article, which generally reported on the Ottawa Planning Commission's consideration of a proposed ordinance to allow bed and breakfast (B & B) establishments to operate in residential areas, precipitated numerous comments by readers. The article did not mention the plaintiffs by name.

One Internet poster, using the screen name “Mary1955” posted:

“Money under the table? ? ? ? ? ? ? ? ? ? ?”

Another poster, “FabFive from Ottawa” (FabFive), later posted:

“Way to pass the buck Plan Commission!! You have dragged this garbage out for over a YEAR now and despite having the majority tell you to NOT change the ordinance you suggest the exact opposite! How dare you! How dare you waste the time of the townspeople who have attended EVERY single one of these meetings to speak out against any changes!! But hey, you don't have the final word so just pass the buck and waste even MORE TIME. How much is Don and Janet from another Planet paying you for your betrayal? ? ? ? Must be a pretty penny to rollover and play dead for that holy roller ... IF this gets anywhere NEAR being passed in favor for the Maxon CULT, you can bet your BRIBED BEHINDS there will be a mass exodus of homeowners from this town ... who will you tax then if noone [ sic ] lives here?” (Emphasis in original.)

On April 17, 2008, Ottawa Publishing published a letter to the editor on MyWebTimes titled “Precedent will be set by changing B & B ordinance!” This letter did not mention the plaintiffs by name. Again, readers published numerous comments online about the issue. FabFive posted:

“Here's another tidbit to consider folks, Ann brought up how it is possible that the Maxon's [ sic ] would take the B & B and turn it into some non [ sic ] for profit church business. Well as it is the Maxon's [ sic ] plan for the addition were to include a LARGE meeting room ... Now since when did a B & B require a meeting room?

The Maxon's [ sic ] haven't played this straight from the day they filed it. The OPC has not played it straight from any of the meetings regarding this. The plan should never had been pushed to the Town Council when several members of the OPC were not even present to vote on it in the new terms that the BRIBED members had created ... And now noone [ sic ] wants to get caught actually voting on it. This has become a hot potato and the music is about to stop. So who gets burned? The MANY people who have spoken out AGAINST these changes, or the FEW individuals who are behind it?”

On the same day, “birdie 1” posted: “FabFive: The bribe has continued since you were last on!!”

On June 9, 2008, the Maxons filed a “Petition for Discovery Before Suit to Identify Responsible Persons and Entities” pursuant to Supreme Court Rule 224, seeking inter alia, an order requiring Ottawa Publishing to disclose the “name, address, phone number, e-mail address or other account information used to establish their blog ¹ ‘identity,’ the password used for access to the blog, or other identifying information” for “FabFive” and “birdie 1.” The petition did not identify the purportedly defamatory comments or indicate that the Maxons had made any effort to notify “FabFive” or “birdie 1” that they were seeking information regarding their identity.

On August 28, 2008, Ottawa Publishing filed a motion to oppose the petition. Attached to the motion was the affidavit of John Newby, publisher of The Times, which stated that he had sent an e-mail to the e-mail addresses on file for “FabFive” and “birdie 1” to give notice of the Maxons' petition to each poster. As a result of this notice, “birdie 1” retained an attorney who was granted leave to intervene. “[B]irdie1” was permitted to appear under a fictitious name. “FabFive” never appeared. After a hearing on August 29, 2008, the court granted the Maxons' motion to amend the petition to include the purportedly defamatory statements.

On September 8, 2008, the Maxons filed an amended petition setting forth the allegedly defamatory statements made by “FabFive” and “Mary1955” (the plaintiffs subsequently withdrew the allegations regarding “Mary1955”) and Susan Wren (whom plaintiffs came to believe was “birdie1”). Ottawa Publishing filed a motion to dismiss the amended petition, and the Maxons filed a written response.

Following oral arguments, the trial court dismissed the amended petition. In so doing, the court noted that no Illinois case law addressed the question of what degree of analysis was required to grant a Rule 224 petition seeking the identity of anonymous Internet posters alleged to have committed the tort of defamation. The parties proffered several cases from other jurisdictions addressing similar questions. The trial court adopted the analysis articulated in Dendrite and Cahill, which requires that a petitioner seeking the disclosure of an anonymous Internet poster must show that: (1) the anonymous poster has been notified of the potential claim so they may have the opportunity to appear; (2) the petitioners have set forth the exact statements that have been purportedly made by the anonymous person; and (3) the allegations meet a prima facie standard and are able to withstand a hypothetical motion for summary judgment as if brought by one of the potential defendants, at least with regard to elements that are within the petitioner's knowledge. Dendrite, 342 N.J.Super. at 146, 775 A.2d at 764. The trial court noted that the goal in applying the Dendrite-cahill test was to BALANCE THE RIGHTS OF A PERSON NOT TO be defamed with the first-amendment, free-speech rights of anonymous posters.

Applying the Dendrite-Cahill test, the trial court found that the Maxons had not satisfied the hypothetical summary judgment test because the literary and social context of the statements...