As online defamation disputes increasingly involve fake accounts, spoofed identities, deepfakes, and AI-enhanced impersonation, New Jersey litigators may soon confront a developing question under the Uniform Public Expression Protection Act, N.J.S.A. 2A:53A-49 et seq. (“UPEPA” or the “Act”): when does deceptive online conduct qualify for anti-strategic lawsuit against public participation (“anti-SLAPP”) protection?
New Jersey adopted the UPEPA in 2023 as part of a growing national trend toward broader anti-SLAPP protections[1]. It provides protections from claims arising from a party’s exercise of free speech on matters of public concern, a developing term of art undefined by the Act.
The Act’s central mechanism permits parties to seek expedited dismissal through an order to show cause. Its two-step burden-shifting framework first requires the movant to establish that the speech in question is protected under the Act, at which point the burden shifts to the other party to demonstrate a prima facie case as to each element of the asserted cause of action. N.J.S.A. 2A:53A-55. Further, the Act permits the court to stay most discovery while the application is pending and mandates the award of reasonable attorney’s fees and litigation costs to a prevailing movant. N.J.S.A. 2A:53A-52, -58.
As New Jersey courts continue developing the Act’s interpretive framework, its application to online speech involving impersonation, false attribution, or anonymous accounts remains an unresolved issue. Such speech creates a tension between competing policies. A fake account or pseudonymous post may address a matter of public concern, but may also result in harm that arises not solely from the content of the speech but from the use of another person’s identity, likeness, or perceived authority. Is this type of speech protected by UPEPA?
These competing principles each find support in existing New Jersey law. First, New Jersey strongly protects anonymous online speech. In Dendrite International, Inc. v. Doe No. 3, 342 N.J. Super. 134 (App. Div. 2001), the Appellate Division established a rigorous framework governing efforts to unmask anonymous online speakers. Second, New Jersey also criminalizes and provides a private cause of action for certain forms of identity-based online misconduct, including electronic impersonation undertaken to injure or defraud another. N.J.S.A. 2C:21-17, -17.4. New Jersey appellate courts have not yet squarely addressed how these principles intersect with UPEPA.
Other jurisdictions provide useful guidance and demonstrate that anonymous or even impersonated speech may qualify for anti-SLAPP protection, depending on the merits of the plaintiff’s claims. For example, in Rosenblum v. Budd, 538 P.3d 354 (Colo. App. 2023), a political candidate filed suit based on posts made by an allegedly impersonated Twitter account during a city council election. The Colorado Court of Appeals held that the state’s anti-SLAPP statute applied because the speech concerned a public issue but also allowed the plaintiff’s claims to proceed because the plaintiff demonstrated a reasonable likelihood of success on certain claims. Thus, the court did not treat the alleged impersonation as automatically removing the dispute from anti-SLAPP coverage.
California courts have similarly recognized that anonymous online speech may receive anti-SLAPP or unmasking protections even where plaintiffs allege deceptive identity-based conduct. In ZL Technologies, Inc. v. Does 1-7, 13 Cal. App. 5th 603 (2017), anonymous Glassdoor reviewers were sued after allegedly portraying themselves as current or former employees. The court required the plaintiff to make a sufficient evidentiary showing regarding the merits of its claims before unmasking the anonymous speakers. California courts have also repeatedly emphasized that unlawful conduct is not immunized merely because it is communicated through anonymous or impersonated online speech.
The likely takeaway for New Jersey practitioners is that anonymous speech or allegations of impersonation should not automatically remove a case from UPEPA protection when the speech concerns matters of public concern. On the other hand, courts should be wary of permitting UPEPA to create a safe harbor for deceptive identity-based conduct that causes reputational or commercial harm precisely because readers believe that someone else made the statements at issue.
As disputes involving AI-generated content, spoofed profiles, and digital impersonation continue to increase, New Jersey courts may soon be required to reconcile the state’s existing protections for anonymous online speech with UPEPA’s discovery stay and expedited dismissal framework. For litigators handling online defamation, business tort, employment, political speech, or emerging AI-related disputes, the interaction between UPEPA, anonymous speech protections, and impersonation-based claims may become an increasingly important area to watch.
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