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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.