Maxon v. Ottawa Pub. Co., 402 Ill.App.3d 704, 929 N.E.2d 666 (Ill. App. 3d Dist. 2010) (full-text).
Factual Proceeding Edit
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. Readers of the Internet version could anonymously post comments to a comments section following each article published on the website after a registration process, which required each person to establish a unique screen name, a password and an e-mail address.
In 2008, Ottawa Publishing published an article about a proposed ordinance to allow a bed and breakfast to operate in residential areas without mentioning the name. Comments following the article claimed the Maxons were taking bribes. The Maxons file a "Petition for Discovery Before Suit to Identify Responsible Persons and Entities," seeking an order requiring Ottawa Publishing to disclose the name, address, phone number, email or other account information used to establish their blog "identity."
After a hearing, the court granted the Maxons' motion to amend the petition to include the purportedly defamatory statements. The trial court dismissed the amended petition and the Maxons appealed.
Appellate Court Proceedings Edit
Trial court's decision denying plaintiffs' petition for discovery before suit to identify posters to the newspaper's website who allegedly posted defamatory comments about plaintiffs, and its conclusion that the allegedly defamatory statements were non-actionable opinions were both matters of law that the appellate court would review de novo.
Generally, the appellate court reviews a trial court's ruling on a petition seeking discovery before suit to identify responsible persons and entities under an abuse of discretion standard. While a trial court may exercise discretion in granting or denying a petition under rule governing discovery before suit to identify responsible persons and entities, a trial court must exercise its discretion within the bounds of the law. Where a trial court's exercise of discretion relies upon a conclusion of law, the appellate court's review is de novo.
Sup. Ct. Rules, Rule 224 states that a person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery. The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides.
A trial court may grant or deny a petition under Rule 224 in the exercise of its discretion. A petition under the rule governing discovery before suit to identify responsible persons and entities must be verified and is inapplicable to any case where the identity of any potential defendant is already known. A hearing must be held on the petition before the court can grant or deny the petition in order to prevent "fishing expeditions." The use of a petition for discovery is limited to discovery of the identity of a potential defendant.
Where a trial court must rule upon a petition to disclose the identity of an anonymous, potential defamation defendant pursuant to the rule governing discovery before suit to identify responsible persons and entities, the court must insure that the petition: (1) is verified, (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation, and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner. If a trial court considers the petition in accordance with these guidelines, all rights of the potential defendant are protected.
Trial courts have a readily available mechanism to determine whether the petition sufficiently states a cause of action against the potential defendant. A motion to dismiss for failure to state a claim attacks the legal sufficiency of the complaint; it does not raise affirmative factual defenses, but alleges only defects on the face of the complaint.A court considering whether to grant or deny a motion to dismiss for failure to state a claim must determine whether the complaint alone has stated sufficient facts to establish a cause of action upon which relief may be granted.
Subjecting a petition for discovery before suit to identify responsible persons and entities to the same level of scrutiny afforded the sufficiency of a complaint pursuant to a motion to dismiss for failure to state a claim addresses any constitutional concerns arising from disclosing the identity of any potential defendant.
Certain types of anonymous speech are constitutionally protected; however, it is overly broad to assert that anonymous speech warrants constitutional protection. Private individuals and their reputations are more deserving of protection against defamation than public officials or public figures.
All potential defendants received some degree of notice by Ottawa Publishing. Once the court has determined that the prima facie case has been met by the petitioner, he has made out a valid claim for damages and has a right to expect a remedy. Once the court has made out a prima facie case for defamation, the potential defendant has no first-amendment right to balance against the petitioner's right to redress for damages to his reputation, as it is well settled that there is no first-amendment right to defame.
Illinois is a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient complaint. Thus, if a complaint can survive a motion to dismiss, it is legally and factually sufficient and should be answered.
To state a defamation claim, a plaintiff must present facts showing that the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages. A statement is "defamatory per se" if its harm is obvious and apparent on its face. Words that impute a person has committed a crime are considered "defamatory per se." However, a statement that is defamatory per se is not actionable if it is reasonably capable of an innocent construction. Moreover, if a statement is defamatory per se, and is not subject to an innocent construction, it still may not be actionable if it is an expression of opinion.
In determining whether a statement is merely an opinion and thus not subject to a cause of action for defamation as a matter of law, courts must take several considerations into account: whether the statement has a precise and readily understood meaning, whether the statement is verifiable, and whether the statement's literary or social context signals that it has factual content.
Statements by anonymous posters that appeared on newspaper's website that citizens bribed members of planning commission in order to obtain a favorable ruling on a zoning matter were sufficient to form basis for claim of defamation against posters, such that citizens, who had filed petition against newspaper for discovery before suit of the identity of the posters, were entitled to disclosure of the identities of the posters from newspaper. Nothing in content or forum indicated that allegations made by posters could not reasonably be interpreted as stating an actual fact, in that the internet postings pointed out that commission's vote was subject to unexplained delay, that citizens' request to rezone their property was approved even though the citizens' proposed structure did not suit the purpose of a bed and breakfast, and that the proposal was changed at the last minute and a vote took place when several members of commission were not present.
The mere fact that a statement of fact is couched in the rhetorical hyperbole of an opinion does not render it non-actionable; the test is whether the statement can be reasonably interpreted as stating actual fact. The appellate court held that the citizens stated a claim for defamation, such that they were entitled to disclosure of the identities of the internet posters from the newspaper.