Implode operates a website that ranks various businesses in the mortgage industry. It posted information about administrative actions taken against the plaintiff by the New Hampshire Banking Department, and information about loans made by the plaintiff. The postings generated negative comments from a person identified only by a username.
The plaintiff brought an action in the superior court and sought an injunction to force the site owner to remove the postings it found offensive, divulge the names of the sources that provided the initial information and, further, to divulge the name of the user who posted the negative comments. This relief was granted by the superior court, and the site owner appealed.
The Supreme Court vacated all of these orders and remanded the matter back to the trial court for further proceedings. It found that the website performed the same function as does a reporter for a newspaper and, thus, was entitled to the same legal protections under the New Hampshire Constitution against divulging the sources of its information. “The fact that Implode operates a website makes it no less a member of the press. … We conclude that Implode’s website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege.” The source may be protected unless a court finds that the information is critical to a plaintiff who claims that the material is defamatory, and that the information may not be obtained from any other source.
The website owner was not compelled to disclose information about a person who anonymously posted comments about the initial information. When a plaintiff alleges that the postings are defamatory, and can show a compelling need for the information, it may be possible to obtain the identifying data. However, it is more likely that the identity of the commenter may be protected since such speech is entitled to constitutional protection.
The Court allowed the website to avoid responsibility for posting information that may have been illegally obtained from a third party. As with a newspaper organization, so long as the information was obtained by the website in a lawful manner, it will have no responsibility for publication of the information, even if someone in the chain of custody of the information did obtain the information unlawfully.
Finally, the Court dissolved the injunction entered at the trial court level which prevented the site from maintaining the information obtained on its site. The Court determined that such an injunction served as a “prior restraint” on speech that is protected by the state and federal constitutions, and, thus, the court order was reviewed using the strictest level of scrutiny. In this case, the injunction could not survive this review and was dissolved.