Jonathan Bilyk Jun. 18, 2015, 12:30pm

The assumption of an online moniker may not be enough to allow online commenters to remain cloaked in anonymity and exempt from a defamation action, should they use their moniker in an online forum to unjustifiably accuse another person of a crime, the Illinois Supreme Court has ruled.

On Thursday, June 18, the state’s high court unanimously upheld the rulings of both a Stephenson County judge and the Illinois Second District Appellate Court, which had both held Internet service provider Comcast was required to disclose the identity of an online commenter who essentially used the assumed identity, “Fuboy,” on an online comments section hosted on the website of the Freeport Journal Standard to accuse a Stephenson County politician of being a child molester and pedophile, akin to convicted serial child molester, former Penn State football coach Jerry Sandusky.

The opinion was authored by Justice Anne M. Burke, with the court's six other justices concurring.

The case arose in early 2012, when Bill Hadley, a local politician who sought election to the Stephenson County Board in Freeport, filed a defamation suit against Fuboy in the local courts.

In late 2011, the Journal Standard had published an article discussing Hadley’s “return to county politics,” with a focus on Hadley’s fiscal policy recommendations for the county.

In a comments section accompanying the article, Fuboy posted: “Hadley is a Sandusky waiting to be exposed.” He further urged readers to “check out the view” Hadley’s home had of a neighboring elementary school.

In a follow-up comment, Fuboy discussed a purported suicide attempt by Hadley, describing it as “kinda ‘It’s a Wonderful Life’ with Pottersville win[n]ing out.”

Hadley alleged in his complaint Fuboy had defamed him. He first sued the Journal Standard’s parent company, Gatehouse Media, from whom he learned Fuboy had made the comments from a computer which drew its Internet service from Comcast.

Hadley then subpoenaed Comcast to turn over Fuboy’s identity. However, the case against Gatehouse was removed to federal court and ultimately dismissed, because a federal judge agreed with Gatehouse the suit was barred under federal law.

In August 2012, Hadley again filed suit in Stephenson County court, this time against Fuboy directly and again subpoenaed Comcast to disclose Fuboy’s true identity.

An attorney purporting to represent Fuboy sought to quash the subpoena.

In early 2013, however, Hadley altered course, ostensibly at the guidance of the Stephenson County judge on the case, to seek to uncover Fuboy’s identity using Supreme Court Rule 224, which offers a way for plaintiffs to identify potential defendants before filing suit. The rule would only apply, however, should Hadley demonstrate his defamation allegations could withstand a motion to dismiss on the grounds the speech was “innocently constructed” or otherwise protected by the First Amendment.

The judge in the case and the appellate court, with one justice dissenting, agreed the defamation allegations were substantial enough to withstand an attempt to dismiss, and the disclosure of Fuboy’s identity was legally necessary.

The courts directed Comcast to provide the name and last known address of the holder of the Internet Protocol address linked to Fuboy’s 2011 comments.

Fuboy then appealed to the state Supreme Court.

The state high court justices, however, also sided with the lower courts. The justices brushed aside Fuboy’s attempt to argue Hadley couldn’t sue an alias, and downplayed the intervention of the circuit court in prompting Fuboy’s counsel to amend their complaint to include a motion under Rule 224, which the court said should ordinarily be done before a complaint is filed.

“The rule is silent on the issue raised here, i.e., how to proceed when a circuit court erroneously instructs a plaintiff to proceed under Rule 224 after suit has commenced,” the justices wrote. “Finally, there is no contention that the specific procedure employed here was prejudicial to Fuboy.

“Given these circumstances, we conclude dismissal of (Hadley’s) defamation suit would be too harsh a sanction,” the justices said.

From there, the justices agreed with the lower courts on the necessity of compelling Comcast to disclose the identity of Fuboy to allow Hadley’s defamation complaint to proceed properly.

Fuboy argued “it is not a crime to have the last name of Sandusky,” and his comment an opinion made in a “political context … in an attempt to seek debate over the candidate.” Therefore he said his comments could be “susceptible to an innocent construction,” and should not be considered per se defamation.

The justices, however, said such an interpretation of Fuboy’s comments “would be strained and unreasonable.”

“We note, as the appellate court did, that while the Internet is susceptible to hyperbole, exaggerations and rhetoric, it is also a place where factual content is conveyed,” the justices wrote. “There is nothing in the content or forum of the Freeport Journal Standard’s website to suggest that Fuboy’s allegation could not reasonable be interpreted as stating an actual fact.

“Indeed, Fuboy expressed familiarity with Hadley not only through the reference to where Hadley lived but also by his comment regarding Hadley’s alleged suicide attempt and how it was like ‘It’s a Wonderful Life.’

“These references would give readers the reasonable belief that Fuboy had personal knowledge of or familiarity with Hadley. We find that Fuboy’s comment cannot be viewed as mere hyperbole.”

The justices remanded the case to Stephenson County for further proceedings.

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