NY Judge Allows Service By Online Post, But Then Goes Off the Grid

A New York state trial judge has allowed service of process via a posting to a web site where anonymous posters placed allegedly defamatory statements. This ruling comports with other New York courts' decisions allowing service of a class notice via e-mail and via a posting on Facebook.

As reported by The New York Law Journal, New York State Supreme Court Justice Milton Tingling Jr. ruled -- apparently in 2013 -- that notice could be served on the anonymous defendants in Anonymous v. Anonymous Jane Does, No. 151769/2013, by posting the summons, complaint and order to show cause on the same site where the original comments at issue were posted, dirtyphonebook.com (now defunct).

The comments, posted by three anonymous users who claimed that they were prostitutes, posted about the plaintiff's alleged sexual habits, statement which the plaintiff claimed were defamatory per se. One of the posters also claimed to be a former employee of the plaintiff who was suing him.

On Dec. 3, Justice Tingling granted a default judgment (subscription req'd) after the defendants failed to appear.

But then Justice Tingling went further, with two problematic points. First, he ordered that the comments be removed from the site. And then he recommended that New York State adopt a version of the European "right to be forgotten" to deal with such cases.

The order to remove the material is a bit of a nullity, since the dirtyphonebook.com site no longer exists. But it is archived online, and any order to remove material for the web -- either a live site or an archived one -- is a restriction on speech that raises serious First Amendment concerns. In short, such an order must serve a compelling government interest, and must be "narrowly tailored" to achieve that interest.

The suggestion that the New York State Legislature adopt a version of the European "right to be forgotten" -- which allows non-public figures to request removal of search engine links to material that is "inadequate, irrelevant or no longer relevant, or excessive ...," as long as there is no overriding public interest in the information being accessible -- is similarly problematic, since such a broad restriction on speech would clearly be unconstitutional.