Court decision is here.
3-2-2009 Maryland:
Decision Internet forum comments sets guidelines for future cases
Maryland's Court of Appeals issued a decision yesterday protecting the identity of three anonymous Internet posters and, for the first time, offering guidelines for state courts to follow in libel cases before unmasking online commenters.
The opinion and instructions stem from a defamation lawsuit filed by Eastern Shore developer Zebulon Brodie against three unknown Internet posters and Independent Newspapers Inc., which runs an online community forum.
The posters had written critical comments about the cleanliness of a Dunkin' Donuts that Brodie owns in Centreville.
The Appeals Court concluded that Brodie was not entitled to identifying information about the posters, even though they used the forum to criticize him and his business, because he misidentified which user names made the offending statements.
The five-step process the court adopted for future cases was borrowed from a New Jersey court and outlined in yesterday's 43-page majority opinion. It seeks to help trial courts "balance First Amendment rights with the right to seek protection for defamation" by suggesting they:•Require that plaintiffs notify anonymous parties that their identities are sought.
•Give the posters time to reply with reasons why they should remain nameless.
•Require plaintiffs to identify the defamatory statements and who made them.
•Determine whether the complaint has set forth a prima facie defamation, where the words are obviously libelous, or a per quod action, meaning it requires outside evidence.
•Weigh the poster's right to free speech against the strength of the case and the necessity of identity disclosure.
A five-page concurring opinion by three of the seven judges accepts steps one through three but asks for clarification on step four as to how prima facie nature should be shown and outright rejects step five as "unnecessary and needlessly complicated." ..News Source.. by Tricia Bishop
Media Need Not Reveal Web Posters' Identities
Ruling Applies 1st Amendment to Internet
Operators of newspaper Web sites, blogs and chat rooms that allow readers to post anonymous comments using pseudonyms do not have to readily reveal the posters' identities in defamation suits, Maryland's highest court ruled yesterday, further shaping an emerging area of First Amendment law in the Internet age.
The Maryland Court of Appeals reversed a lower court ruling and ordered that NewsZap.com, an online forum run by Independent Newspapers, does not have to disclose the identities of forum participants who engaged in an online exchange about the cleanliness of a Dunkin' Donuts shop in 2006.
Zebulon J. Brodie, an Eastern Shore businessman, had contended that the anonymous posters -- using such screen names as "CorsicaRiver" and "Born & Raised Here" -- had defamed him in comments about his Centreville restaurant.
The Appeals Court ruled that Brodie had not correctly identified the forum participants and, therefore, was not entitled to learn of their identities.
More broadly, however, the court used the case to recommend a strict, five-step process for judges to follow "to balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation."
The process, which closely matches one set out by a New Jersey court in 2002, requires a plaintiff claiming defamation from an online comment to try to notify the anonymous poster that the person is the subject of a subpoena -- including by posting a message on the relevant online message board.
The plaintiff must then identify in court filings the exact statements purportedly made by each anonymous poster, as well as show how those comments have caused damage.
Maryland's court also went further than New Jersey's, adding that the plaintiff might have to provide specific evidence supporting each element of the defamation claim. Finally, it indicated that judges also have to balance the anonymous poster's right of free speech against the need to disclose a defendant's identity.
Sam Bayard, assistant director of the Citizen Media Law Project at Harvard Law School, said that, taken together, this and other recent state court cases show a convergence of law surrounding the right to online anonymity.
"It seems to be pretty much following a recent trend that we've been seeing -- that there is at least a qualified right to speak anonymously on the Internet," Bayard said. "Courts are going to require the plaintiff or others seeking identities to make a heightened showing that they have a valid cause of action."
Paul Alan Levy, a lawyer for Public Citizen, a consumer advocacy group that argued the case for Independent Newspapers, agreed. "It's obviously a reaffirmation of the right to speak anonymously," he said, adding that the right is increasingly important as more people post comments online.
"The media are looking to the online world as a place to convey their information and to draw readers into participation and exchanges about what's going on because that leads to increased readership interest in their sites," Levy said.
"In a lot of cases, [the comments] are either hyperbole or just opinion," he said. "But if accusations are of something the community would regard as wrongdoing and you can show that it's false and the damage it's caused, [the court ruling] is saying you then go and proceed" with court action. The Washington Post-Newsweek Interactive and several other media organizations filed a brief in support of Independent Newspapers.
E. Sean Poltrack, a lawyer for Brodie, said in an e-mail that he had not yet read the ruling last night, so any comment would be premature. ..Source.. by Aaron C. Davis, Washington Post Staff Writer
March 2, 2009
MD- Court rules to protect identities in online libel case
December 29, 2008
MD- Naming names
12-29-2008 Maryland:
Court weighs whether to identify authors of critical and anonymous postings on the Internet
You may not be as anonymous online as you think.
Maryland's highest court will soon decide how easy it is to unmask those who use pseudonyms to post critical comments on the Internet. So far, the state has been operating without a set of rules for identifying those people, but the issue has surfaced over criticism of an Eastern Shore developer.
The issue of Internet anonymity has cropped up in other courts around the country, but this is the first time that Maryland's Court of Appeals has confronted it. This month, the judges heard arguments that invoked the right to anonymous free speech and the right of defamed people to sue their attackers.
The outcome will have implications for the thousands of people who post critical comments, true or not, on Internet message boards, chat rooms and blogs.
Decisions in similar cases around the country have varied.
A Delaware Superior Court ordered Comcast to divulge the identity of an Internet poster critical of a councilman who filed a lawsuit. But the decision was overturned by the state's Supreme Court in 2005 "because the trial judge applied a standard insufficiently protective of [the poster's] First Amendment right to speak anonymously." A year earlier, a Texas court said an Internet poster couldn't file a lawsuit response anonymously even though he claimed the suit targeting him was intended to silence critics.
Web sites themselves, meanwhile, have not generally been held liable for carrying such critical comments - a policy enshrined in federal law and designed to encourage the free flow of opinion, information and ideas online.
Here's a primer on the Maryland dispute:
CASE: Independent Newspapers Inc. v. Zebulon J. Brodie; arguments heard Dec. 8.
LEGAL QUESTION: "May a court breach the constitutional right to speak anonymously and order the identification of Internet speakers who are alleged to have violated the plaintiff's rights without a factual and legal showing that the plaintiff has a supportable claim on the merits?"
In other words: If someone files a defamation suit over your anonymous online comments, can a court order that you be identified - even without evidence that you lied?
AT STAKE: The right to free, anonymous speech, which has a long history in the United States (think The Federalist Papers) and is credited with everything from shaping our government to uncovering Watergate. And the right to confront a person who has done you harm, so you can set things straight.
THE PARTIES:
Appellant - Independent Newspapers, or INI, which runs community papers and Web sites in Maryland, Delaware, Arizona and Florida.
Appellee - Zebulon J. Brodie, a real estate developer who also runs several businesses, including a Dunkin' Donuts in Centreville.
BACKGROUND: On March 20, 2006, someone using the online handle "CorsicaRiver" posted a derogatory comment about one of Brodie's businesses on an Eastern Shore-focused message board maintained by INI. The comment: "I wouldn't go to that Dunkin' Donuts of Brodie's anyway ... have you taken a close look at it lately? One of the most dirty and unsanitary-looking food-service places I have seen."
A user self-identified as Suze responded: "I haven't seen the inside of a DD in a while, but have you seen the outside? I drove the through not long ago and was completely and utterly SHOCKED at the amount of trash that is and sides of that building. It's apparent no one is cleaning the outside of the building and the wafting into the river that runs right alongside."
Two months later, Brodie filed a defamation lawsuit against INI and some Internet posters in Queen Anne's County Circuit Court. The judge dismissed INI as a defendant but ruled that the comments about Dunkin' Donuts could be considered defamatory and ordered the newspaper publisher to give up the posters' identities.
INI appealed.
ARGUMENTS:
INI: The court can't make it too easy for predators to unmask their critics, or too easy to hide behind a pseudonym. It should adopt a five-part test similar to that used in other jurisdictions before enforcing subpoenas requiring identity disclosure: (1) notify the posters so they can defend their anonymity, (2) require plaintiffs to specify which statements have violated their rights, (3) make sure the complaint has a cause of action against each defendant, (4) require plaintiffs to produce evidence supporting their claims, and (5) weigh the potential harm to plaintiffs if they can't proceed against the potential harm to defendants by losing their anonymity.
Brodie: Defamatory speech is not constitutionally protected; once a statement has been deemed potentially libelous, the writer should be revealed. Plaintiffs shouldn't have to prove their cases from the outset; that's too onerous. Moreover, they often need to know the identity of their defamers to produce evidence to support their claims.
DECISION: Expected in early 2009 ..News Source.. by Tricia Bishop
July 22, 2008
TN- Police director sues (AOL) to find identity of blogger critical of MPD
7-22-2008 Tennessee:
Memphis Police Director Larry Godwin and the city of Memphis have filed a lawsuit to learn who operates a blog critical of the director and his department.
The lawsuit, filed in Chancery Court recently, asks AOL to produce all information related to the identity of an e-mail address linked to MPD Enforcer 2.0, a blog popular with cops that has been extremely critical of police leadership at 201 Poplar Ave.
The lawsuit seeks any and all information related to the creation of the e-mail account, any billing or payment records dealing with the account and any names, e-mail addresses, telephone numbers or addresses associated with the site.
Much of the case has been sealed by Chancellor Kenny Armstrong.
“Larry Godwin has subpoenaed AOL over an attempt to obtain the identities of the blog operators,” the anonymous bloggers wrote.
“In what could be a landmark case of privacy and the 1st Amendment, Godwin has illegally used his position and the City of Memphis as a ram to ruin the Constitution of the United States,” said the bloggers, who operate under the name of Dirk Diggler. “Some members of the Enforcer 2.0 have contacted their attorneys and we are in the process of filing a lawsuit against Larry and the City of Memphis. What's wrong Larry? The truth hurt?”
City and police officials were not immediately available for comment. ..News Source.. by Amos Maki (Contact), Memphis Commercial Appeal
February 20, 2008
Anonymous Blogging and Defamation: Balancing Interests of the Internet
2006
Abstract:
As more and more people create personal websites and blogs, courts are more frequently asked to rule on questions related to the Internet boom. Specifically, an issue has arisen concerning what standard to apply in defamation suits brought against anonymous bloggers. Courts have wrestled with producing an appropriate standard for revealing the identity of an anonymous blogger who posts allegedly defamatory material on a message board or website. Recently, in Doe v. Cahill, the Delaware Supreme Court created a strict standard that makes it extremely difficult for defamation victims to bring suit against anonymous bloggers. The standard created is far too sympathetic to anonymous bloggers and fails to address important issues facing victims of defamation.
It is important not to silence communication on the Internet, but it is just as important not to silence victims of defamation. Therefore, this comment argues for the protection of libel plaintiffs facing defamatory comments from anonymous bloggers. ..more.. by BETSY MALLOY, University of Cincinnati - College of Law
