Every day innumerable people “speak” on the Internet, through e-mail, social media, blogs and other electronic writings, without disclosing their identities (or by using fictitious ones). But the anonymity of Internet speech becomes an issue when one feels aggrieved by anonymous (or pseudonymous) words. And although the First Amendment protects anonymous speech, that protection is not absolute. Increasingly, would-be plaintiffs—particularly those claiming defamation based on Internet speech—resort to the courts to unmask the electronic speaker’s identity. New York’s pre-action disclosure statute provides a well-suited mechanism for doing so, although using it for this purpose raises unsettled issues.
Disclosure Under §3102(c)
Section 3102(c) of CPLR authorizes disclosure “[b]efore an action is commenced…to aid in bringing an action…but only by court order.” The request typically is by a special proceeding under CPLR Article 4. To obtain pre-action disclosure, the petitioner must show that (i) a meritorious cause of action exists and (ii) the information sought is material and necessary to that wrong.1
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