Appellate court judgment affirmed. Cause remanded.
Robert M. Fagan, of Freeport, for appellant.
Andrew T. Smith and Ronald A. Barch, of Cicero, France, Barch & Alexander, P.C., of Rockford, for appellee.
JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.
[¶1] The plaintiff, Bill Hadley, filed a defamation lawsuit against the defendant,
Subscriber Doe, a/k/a " Fuboy," based on statements made by Fuboy in the comments section of a newspaper website. After the suit was filed, Hadley requested the circuit court, pursuant to Illinois Supreme Court Rule 224 (Ill. S.Ct. R. 224 (eff. May 30, 2008)), to order Fuboy's internet service provider to disclose Fuboy's identity. The circuit court granted the request and the appellate court affirmed. 2014 IL App. (2d) 130489, 382 Ill.Dec. 75, 12 N.E.3d 75. For the reasons that follow, we affirm the judgment of the appellate court.
[¶3] On December 28, 2011, the Freeport Journal Standard published an online newspaper article entitled " Hadley returns to county politics. Candidate stresses fiscal responsibility." The article discussed plaintiff Bill Hadley's decision to again seek election to the county board of Stephenson County, Illinois. Online readers could post comments in response to the article after completing a basic registration process. On December 29, an individual using the name " Fuboy" posted the following comment: " Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door." Fuboy also made a second comment, stating: " Anybody know the tale of Hadley's suicide attempt? It is kinda 'It's a Wonderful Life' with Pottersville win[n]ing out. We can just be happy that Stephenson County is fortunate enough to have this guy want to be of 'service' again."
[¶4] In early 2012, Hadley filed a defamation lawsuit in the circuit court of Stephenson County against the parent company of the Freeport Journal Standard, Gatehouse Media (Gatehouse), a New York corporation. Thereafter, Gatehouse provided Hadley the Internet Protocol (IP) address acquired from Fuboy's internet service provider, Comcast Cable Communications LLC (Comcast). This was the IP address from which the comments had been transmitted to the Freeport Journal Standard's website. On March 1, 2012, Hadley issued a subpoena to Comcast, seeking the identity of the subscriber who had been assigned that IP address. The next day, however, Gatehouse successfully removed the cause to federal court and the circuit court action was subsequently dismissed.
[¶5] While in federal court, Hadley issued a subpoena to Comcast, again seeking the identity of the person assigned the IP address. On March 28, 2012, a representative from Comcast advised Hadley's counsel that it was preserving the records and information requested; that it had the name and address of only one account holder of the IP address at issue; and that it required a court order directing it to provide Hadley with the information. Based on these representations, Hadley filed a motion for an order directing Comcast to turn over the records and information it possessed regarding the IP address. The federal court granted Hadley's motion, directing Comcast to turn over information to Hadley regarding the IP address. However, the court also allowed the subscriber at the IP address the ability to contest the subpoena. On April 24, counsel entered an appearance and filed a motion to quash the subpoena.
[¶6] On July 11, 2012, the federal court granted a motion to dismiss filed by Gatehouse,
finding that Hadley's claim against Gatehouse was barred by federal statute. The dismissal of the lawsuit rendered the motion to quash moot.
[¶7] On August 7, 2012, Hadley returned to the circuit court of Stephenson County and filed the instant defamation action against Subscriber Doe a/k/a " Fuboy."  In this complaint, Hadley alleged that the comment made by Fuboy that Hadley was a " Sandusky waiting to be exposed" was defamatory per se because it imputed the commission of a crime to Hadley. Along with the complaint, Hadley issued a subpoena to Comcast requesting records and information concerning the IP address. Hadley also filed a motion for entry of an order directing Comcast to turn over such information.
[¶8] On August 31, 2012, the circuit court entered an order directing Comcast to comply with the subpoena and to provide the information requested, with the conditions that Comcast would have to notify the subscriber and the subscriber would be allowed 21 days to contest the subpoena. On September 26, the same attorney who had appeared in federal court filed a motion to quash the subpoena. Counsel also filed a special and limited appearance to contest jurisdiction.
[¶9] During a hearing held in January 2013, the circuit court informed the parties that the better procedure to use to discover the identity of Fuboy would be Illinois Supreme Court Rule 224. Ill. S.Ct. R. 224 (eff. May 30, 2008). In general, Rule 224 provides a means to identify potential defendants prior to the commencement of suit. Relying on Stone v. Paddock Publications, Inc., 2011 IL App. (1st) 093386, 961 N.E.2d 380, 356 Ill.Dec. 284, the circuit court stated that, to show that relief under Rule 224 was necessary, Hadley would have the burden of setting forth allegations that would be sufficient to withstand a motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)), even if such a motion was not filed. As the Stone court explained, this requirement is necessary in order to protect any first amendment interest possessed by the online commentator to engage in nondefamatory, anonymous speech. The circuit court then entered an order granting Hadley leave to file an amended complaint to add a count seeking relief under Rule 224.
[¶10] Based on the circuit court's instructions, Hadley filed an amended complaint on January 24, 2013. Count I alleged a cause of action for defamation against Subscriber Doe a/k/a Fuboy. Count II, directed at Comcast as respondent, sought an order directing Comcast to disclose Fuboy's identity pursuant to Rule 224.
[¶11] After additional briefing and hearing, the circuit court concluded that count I of Hadley's complaint could withstand a motion to dismiss under section 2-615 and, therefore, Hadley was entitled to Rule 224 relief. The circuit court found that the " Sandusky" in Fuboy's statement referred to Jerry Sandusky, the Penn State University football coach who was charged with sexual abuse of numerous boys, and that this would be obvious to any reasonable person who read Fuboy's statement. The court also concluded that the comment imputed the commission of a crime to Hadley; that it was not capable of an innocent construction; and that it could not be considered an opinion. Accordingly, the ...