Court Decision on Defamation and Internet Anonymity

Reply Thu 5 Mar, 2009 09:58 am
Maryland high court sets legal standard for outing online foes
(By David L. Hudson Jr., FirstAmendmentCenter.org, 03.03.09)

Ruling in what it called a “confrontation between defamation law and the use of the World Wide Web,” Maryland’s highest court made it harder last week for plaintiffs in libel suits to unmask anonymous online critics.

In its Feb. 27 ruling in Independent Newspapers Inc. v. Brodie, the Maryland Court of Appeals said those who file libel suits against unknown online posters must establish a prima facie, or basic, case of defamation before a trial court should order an Internet service provider to release the names of those posters.

The high court had to balance two competing interests " the right of individuals to engage in anonymous speech online and individuals’ right to protect their reputations from online smearing. The court split 4-3 regarding one element of the applicable legal standard: whether courts also must balance an anonymous poster’s free-speech rights against the strength of the defamation claim. Four justices believed the balancing prong was necessary, while three justices contended that it would create a “superlaw of Internet defamation.”

The case involved a defamation claim filed by Maryland businessman Zebulon J. Brodie who sued Independent Newspapers Inc., which runs Newszap.com, over comments made by anonymous posters known only by the screen names “CorsicaRiver,” “Born & Raised Here” and “chatdusoleil.” Brodie sued for defamation and conspiracy to defame in May 2006 over comments made the preceding March about the dirtiness of a Dunkin Donuts store Brodie owned in Centreville, Md., and the burning of a building Brodie sold to a developer.

Brodie sued both Independent Newspapers and the three anonymous posters for both sets of comments. In November 2006, a trial judge dismissed Independent Newspapers from the case, finding that it was entitled to immunity under Section 230 of the Communications Decency Act. Section 230 provides a broad degree of immunity to “providers and users of interactive computer services” for content created by third parties. The trial judge determined that Independent Newspapers was such an interactive service provider.

The trial judge also dismissed the defamation claims concerning the comments about the burning of the building, reasoning that any defamation was targeted toward the developer, not Brodie. However, the judge ordered Independent Newspapers to reveal the identities of the three unknown posters.

Later Brodie and his counsel sought to uncover the identities of two additional posters, “RockyRaccoonMd” and “Suze,” who actually wrote the allegedly defamatory comments regarding Brodie’s food establishment. The trial judge also ordered Independent Newspapers to reveal the identities of these two posters.

On appeal, the Maryland high court determined that Independent Newspapers did not have to reveal any of the five anonymous posters. It reasoned that Independent Newspapers did not have to reveal the names of the first three because none of them spoke on the food-establishment claim " the only part of the defamation claim that applied to Brodie.

In addition, the court said, Independent Newspapers did not have to reveal the identities of the two posters who wrote the allegedly defamatory material, RockyRaccoonMD and Suze, because Brodie did not sue them in his lawsuit and did not amend his lawsuit to include them.

However, the Maryland high court did much more than decide the fate of Brodie’s defamation claim. As the court explained in its ruling: “We granted certiorari in this case not merely to sort out the record, but to provide guidance to trial courts in defamation actions, when the disclosure of the identity of an anonymous Internet communication is sought.”

Writing for four justices, Judge Lynne A. Battaglia surveyed the legal landscape with regard to how other courts had balanced the right to engage in online anonymous speech and the right of an individual to uncover the identities of anonymous defamers.

The Maryland court found that the most appropriate of the standards was the one used by the New Jersey appeals court in Dendrite International Inc. v. Doe (2001). That court determined that a defamation plaintiff seeking to unmask online John Does must establish facts sufficient to establish a prima facie case of defamation. Under the Dendrite standard, if the court determines there is such a prima facie case, it then balances the First Amendment right of anonymous speech against the strength of the prima facie case presented and the need for disclosure.

The Maryland high court declined to adopt the more speech-protective standard articulated by the Delaware Supreme Court in Doe v. Cahill (2005). In that case, the Delaware high court ruled that defamation plaintiffs must meet a “summary judgment standard” before identities of online defamers will be revealed. That court said that a plaintiff “must support his defamation claim with facts sufficient to defeat a summary judgment motion.” To survive a summary-judgment motion, a litigant must show that there are genuine issues of material fact in dispute that must be resolved by a factfinder (a jury or judge). The Delaware high court wrote that “allowing a defamation plaintiff to unmask an anonymous defendant’s identity through the judicial process is a crucial form of relief that if too easily obtained will chill the exercise of First Amendment rights to free speech.”

The Delaware court also declined to adopt a less speech-protective test " called the good-faith standard " which provides that a defamation plaintiff need only show a “good faith basis” or meet a “motion to dismiss” standard for the defamation suit to uncover the identities of the online defamers.

The Maryland high court determined that the Cahill summary-judgment standard tilted the balance too far toward the interests of the anonymous speakers, while the good-faith standard tilted the balance too far toward the interests of defamation plaintiffs. According to the Maryland court, adopting the summary-judgment standard “would undermine personal accountability and the search for truth, by requiring claimants to essentially prove their case before even knowing who the commentator was.” However, the Maryland court also determined that the good-faith standard “would inhibit the use of the Internet as a marketplace of ideas, where boundaries for participation in public discourse melt away.”

The Maryland court determined that the Dendrite standard “most appropriately balances a speaker’s constitutional right to anonymous Internet speech with a plaintiff’s right to seek judicial redress from defamatory remarks.”

Under the adopted standard, trial courts hearing defamation suits against online John Does must (1) require the plaintiff to undertake efforts to notify the anonymous posters they are the subject of legal action; (2) “withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application”; (3) require the plaintiff to identify the exact statements made by each online poster that is allegedly defamatory; (4) determine whether the lawsuit has met the basic elements of a prima facie claim of defamation; and (5) “balance the anonymous posters’ First Amendment rights against the strength of the prima facie case of defamation.”

Three justices " in a concurring opinion by Judge Sally D. Adkins " agreed with most of the main opinion, but objected to the additional balancing prong. “In my view, the balancing test is unnecessary and needlessly complicated,” she wrote. “I fear that the majority’s decision invites the lower courts to apply, on an ad hoc basis, a ‘superlaw’ of Internet defamation that can trump the well-established defamation law.”
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Reply Tue 24 Mar, 2009 11:26 am
How Easily Should Defamation Plaintiffs Be Able to Find Out the Identities of Anonymous Online Speakers From Internet Service Providers?
(By JULIE HILDEN, FindLaw.com, March 16, 2009)

On February 27, the Maryland Court of Appeals " the state's highest court -- set down some clear rules for when, in that state, a plaintiff challenging an anonymous online posting as defamatory can find out the poster's identity from an Internet Service Provider (ISP). In so doing, the court considered both the poster's right to free speech " including the First Amendment right, recognized by the U.S. Supreme Court, to speak anonymously " and the plaintiff's right to seek a legal remedy for defamation.

In this column, I'll explain the rules the Maryland court chose, and some of the alternatives that other courts have endorsed. I will contend that the Maryland court chose a wise solution in a still-developing area of law.

I will also argue, however, that a federal solution in this area would be a better way for America to address the major differences between online and offline anonymous speech, the way these differences affect defamation law, and the national (and international) nature of the Internet itself.

To begin, the Maryland court agreed with other states' courts that the plaintiff should be required to attempt to notify the anonymous defendant of the lawsuit against him or her, by posting the information on the same message board or other online forum where the allegedly defamatory communication had appeared.

It's no surprise that this reasonable, common-sense requirement has gained courts' favor: It places a minimal burden on the plaintiff while protecting defendants and their First Amendment rights, which include the right to speak anonymously.

Also, it's commonly agreed that it is a key component of due process that the plaintiff must make reasonable efforts to let the defendant know he is being sued. That's why the requirements for valid service of process are laid down by the law, and why sometimes courts require newspaper announcements to be made relating to cases before them.

Much more controversial, among the states, than the notice question, is the question of what must be shown by a defamation plaintiff before he or she can force an ISP to unmask an anonymous poster. The Maryland Court isolated four different tests courts have used or considered: (1) the plaintiff must produce facts sufficient to defeat a motion for summary judgment; (2) the plaintiff's allegations must be sufficient to survive a motion to dismiss the complaint; (3) the plaintiff must have a good faith basis for the suit; (4) the plaintiff must establish facts sufficient to make out a prima facie case as to each of the elements of defamation, including damages and, if such a case is made, the court must balance the defendant's First Amendment right to anonymity against the plaintiff's right to seek a remedy for claimed defamation in deciding whether to unmask the defendant.

Which of these four tests is the best? To begin, even a strong First Amendment advocate like myself must recognize that the first test " the ability to survive a summary judgment motion -- puts too high a burden on the plaintiff.

To prove defamation, a plaintiff must establish a false, defamatory statement, made with the requisite level of intent, that caused damages. Thus, in order to defeat a summary judgment motion, the plaintiff will need to adduce proof of intent -- either "actual malice," defined as knowledge of falsity or reckless disregard as to truth or falsity (for public-figure defendants) or negligence (for private figures). That proof is typically collected in two ways " by deposing the defendant and by examining documents that evidence the plaintiff's state of mind. But, of course, it's impossible to depose or get documents from an anonymous defendant. Thus, this test essentially asks the plaintiff to do something that is impossible: figure out what a defendant knew or thought, without even knowing who he or she is. (The interesting solution of anonymous discovery might solve this issue " but would be very unusual and novel.)

What about the second test " the ability to survive a motion to dismiss? This test is too easy to pass.

Granted, sometimes motions to dismiss do get rid of meritless defamation cases " for instance, if the statement at issue isn't really defamatory, if the statement is of opinion rather than fact, or if the statement is true enough ("substantially true") for First Amendment purposes, even if it is not true in every detail. But generally, a false statement and the mere allegations that the defendant had the required state of mind and that the plaintiff suffered damages, will allow a defamation plaintiff to survive a motion to dismiss. Thus, this test will predictably unmask anonymous posters even when they did not have the required state of mind and/or when the plaintiff did not suffer damages. The third test " the "good faith basis" test -- is similarly too weak, as well as being disturbingly vague.

That leaves us with the fourth test, which the Maryland Court of Appeals wisely embraced: a prima facie case, plus a balancing test. This is the best of the four alternative, yet it still has some disturbing features. To make out a prima facie case, the plaintiff will have to put forth at least some evidence on each element " thus, for instance, preventing cases from being brought when there are no concrete damages. For example, suppose a restaurant sues an anonymous poster for a poor review. If the restaurant's profits have remained steady despite the review, the court may hold that there is no prima facie case as to damages.

But again, even under this fourth test, it will be hard for the plaintiff to put forth any state-of-mind evidence without knowing who the defendant is, and having the ability to pose discovery requests to him or her.

Also, the addition of the balancing test " weighing the need to enforce defamation law against First Amendment concerns, based on the specifics of the given case -- seems somewhat redundant. The test seems likely to protect speech on subjects of intense public interest " for there, the First Amendment aspect is greatest. Yet, when speech concerns such subjects, it seems likely that the plaintiff may not be able to make a prima facie case as to state of mind anyway, for actual malice is likely to be required. And generally, it is a little odd for a court to take the First Amendment into account twice " first in devising the plaintiff's showing, and then second in the balancing test.

No wonder, then, that three of the Maryland Court of Appeals judges agreed with the prima facie case test that the majority adopted, but saw no need to impose an additional balancing test as well.

In sum, the Maryland Court of Appeals was wise in choosing the better options from the menu of solutions that courts have thus far imposed. But the gradual process that is occurring here " common-law development of the standards, along with state courts' watching and learning from other state courts' successes and mistakes " seems wrong in light of the transformative nature of the Internet, and the fact that its audience is national, not local.

Prior to the Internet, of course, individuals' anonymous speech typically had a limited audience. Modern newspapers and other publications generally wouldn't publish anonymous writings (as they had back in the Framers' time, when pseudonyms were common) so such writings' impact was generally local -- confined to, say, unsigned leaflets in a local election. If anonymous speech was widely distributed " as with Deep Throat, Watergate, and the Washington Post " it was first filtered through reporters, who could themselves be sued and, in some cases, forced to reveal their sources or face jail.

Depending on your point of view, those reporters either provided a worthy check to balance anonymity against veracity, or else created an unjustifiable screen through which certain individuals " often, individuals with fairly homogeneous backgrounds and viewpoints " could keep some stories and claims from reaching a wide audience, while letting others through. Reporters were gatekeepers, but was that function honorable, or pernicious? The answer varied based on the facts of the given story or claim and the viewpoint of the person commenting.

Now, the gate is gone. Individuals can speak directly and anonymously on the Internet. At first glance, that reality might seem to obviously call for the strengthening of defamation law " on the theory that individuals can now speak to a mass audience and thus inflict massive damage to reputation. But upon closer examination, the answer is not as clear. Internet readers will naturally discount the weight of anonymous speech, because they know they have no ability to verify it. And the target of the speech can generally reply quickly and effectively on the Internet, too " and also reach a mass audience. Thus, the huge power disparity between the speaker and the target was a more likely situation in the pre-Internet world, than in this one. In addition, I expect to see more effective ways for targets (and their defenders) to reply to their critics as the Internet continues to evolve.

As a matter of policy, it might be a good idea to simply get rid of defamation law on the Internet, and replace it with a means by which those who are attacked can effectively reply to the same audience their attacker reached. This solution would be a kind of Internet fairness doctrine, but because the space for speech on the Internet is near-limitless, it would not be plagued by the problems that the broadcast fairness doctrine has suffered. Rather than choosing speakers to represent "the other side," sites would simply be required to leave message boards open, and to allow new posters to connect their messages with old threads, in order to reply to statements attacking them.

A federal statute embodying this limited right-of-reply might be preferable to allowing courts to craft fifty different solutions to the problem of how to address anonymous speech on what is truly a national (and international) forum. But until Congress or a federal agency takes action, we will be left pretending that the Internet's national forum is no different than the town square.
Reply Tue 24 Mar, 2009 09:13 pm
This is going to be a thorny issue with no easy answers.
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