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Thursday, October 13, 2005

Anonymous blog comments: your constitutional right

Savvy tech lawyer Jere Webb sends along a doozy of a story that should be of interest to bloggers, to their readers, and especially to those who leave comments on other people's blogs. The Delaware Supreme Court ruled last week that before an internet access provider like Comcast can be forced to disclose the identity of a customer who anonymously posted a blog comment that allegedly libeled a local politician, the politician must do more than show that he or she has a "good faith" claim against the commenter. The politico must make a stronger showing -- that his or her libel claim actually may have merit.

The case involved a defamation claim by Patrick Cahill, a Smyrna, Del. city council member (I think that's him on the right), against a person who posted allegedly libelous comments on a blog under the name "Proud Citizen." (The closest thing I could find to the site in question was this, and that's a bulletin board, not a blog, isn't it?) Anyway,"Proud Citizen" remarked that Cahill had "character flaws, not to mention an obvious mental deterioration." In a later post, he spelled the name of the councilman as "Gahill," which the latter alleged could be read as an accusation that he had had an extra-marital gay affair.

Since Cahill didn't know the commenter's identity, he and his wife brought suit against "John Doe." They also went to the blog's owner, Independent Newspapers, and got the commenter's IP address from them. It was a Comcast IP address, and so the plaintiffs next approached Comcast, asking for the name of the subscriber who was assigned that IP address at the time. (Actually, Comcast customers' IP addresses stay fixed for long periods of time, so it would take little or no sleuthing for Comcast to make the ID.) Under federal law, Comcast has to give the customer notice before it discloses such information, and in this case, "Proud Citizen" objected to being identified.

The trial court in the libel suit ordered "Proud Citizen's" real name to be disclosed, since the councilman had shown that his libel action was brought in "good faith." But the state supreme court reversed that ruling. To get the commenter's name, the supreme court ruled, the councilman would have to make a preliminary showing that his libel suit had merit -- a showing strong enough to overcome a motion by the other side for a summary judgment.

This typically means that the plaintiff must present at least some evidence that he or she would win in the libel suit -- in other words, he or she must make what lawyers call a "prima facie case" on each element of the libel action. In Delaware, if the aggrieved person is a public figure, such as a politician, among the things that he or she must show is that the statement in question was false; that it was a statement of fact and not merely a statement of opinion; and that it caused harm (typically, by injury to his or her reputation).

The bottom line? If the libel claim is silly or trivial, the aggrieved subject of the offending comment can't get the identity of the commenter from the internet access provider. If it's stronger than that, the aggrieved party likely can. At least, that's now the rule in Delaware -- we'll see how other states react.

Where do blog commenters get such protection? From the First Amendment, of course. As the Delaware court explained:

It is clear that speech over the intemet is entitled to First Amendment protection. This protection extends to anonymous intemet speech. Anonymous internet speech in blogs or chat rooms in some instances can become the modem equivalent of political pamphleteering. As the United States Supreme Court recently noted, "anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent." The United States Supreme Court continued, "[t]he right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse."
In a situation such as that of "Proud Citizen," protection of the speaker's identity was particularly crucial, the court said:
We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all. A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker "may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes." * * * After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution.
In a side note, the court suggested that the better remedy for the target of an offending blog comment isn't a lawsuit -- but rather to post a counter-comment on the same blog:
Besides the legal remedies available to a plaintiff wronged by internet defamation, the potential plaintiff has available a very powerful form of extra-judicial relief. The internet provides a means of communication where a person wronged by statements of an anonymous poster can respond instantly, can respond to the allegedly defamatory statements on the same site or blog, and thus, can, almost contemporaneously, respond to the same audience that initially read the allegedly defamatory statements. The plaintiff can thereby easily correct any misstatements or falsehoods, respond to character attacks, and generally set the record straight. This unique feature of internet communications allows a potential plaintiff ready access to mitigate the harm, if any, he has suffered to his reputation as a result of an anonymous defendant's allegedly defamatory statements made on an internet blog or in a chat room.
Turning to the statements in the case at hand, the court held that they were not libelous, in large part because they were posted on a blog, and everyone knows that blogs and chat rooms are so full of unsubstantiated opinion and hyperbole that no one would ever take them as reliable sources of factual material. You can't defame a public figure by stating your opinion about them. And responsive comments from another poster promptly called at least one of "Proud Citizen's" comments out as unfounded. In the end, "Proud Citizen" was completely exonerated.

The full text of the court's opinion is here (pdf). Even if you're not typically inclined to read court opinions, as someone who reads blogs you should find this one of interest. See what the powerful men and women in the black robes are saying about bloggers, commenters, and readers like yourselves.

Comments (8)

From the court's opinion:The internet provides a means of communication where a person wronged by statements of an anonymous poster can respond instantly, can respond to the allegedly defamatory statements on the same site or blog, and thus, can, almost contemporaneously, respond to the same audience that initially read the allegedly defamatory statements.

Very interesting. Thanks for posting this, Jack.
I've never posted anything anonymously (though god knows I maybe should have) but that's my personal something to say, you put your name to it. But reading the opinion, it gives me a better perspective on the free speech issues inherent in anonymous posting. Still, someone who posts as "SurferDude" or "Bob" doesn't have the standing --at least for me-- of someone willing to stand behind their words.

I guess I'll take the Delaware result over the one in China, where the government, with the help of internet providers (Cisco has notably been identified as aiding the Chinese government in this), tracks down and punishes web users for postings that the government finds offensive.

So, if Comcast just delivered the identity then the appeal court opinion would never have been written?

The only issue is the self-interest of Comcast, as they could not have standing to argue anything different. They are not within the reach of an overbreadth argument.

While Comcast might find that it is in their self-interest today to offer assurances to their private clients I surely do not wish for the *whim of the Comcast folks* to serve as the new outer limit of MY rights.

The "John Doe" could have appeared directly via their own attorney but nevertheless remained anonymous. Then the challenge would have been the scope of authority of the attorney, rather than Comcast, to keep the identity of their client private.

All the poetic yammering about the First Amendment is fine, but largely dicta, except for folks in like position as an ISP. Think, instead, Lawyer-Lobbyist *discretion*.

True, Ron. Note that the ISP is the one who resisted... first the plaintiff got the ISP's identity from the site's publisher, apparently quite easily. (Seems odd, doesn't it? A newspaper caves on a First Amendment issue, while an ISP fights?)

However, there are technical measures one can take that would make it much more difficult for a site publisher to correctly identify one's ISP, such as Tor. Using such a tool would afford another level of protection independent of the resistance (or lack thereof) put up by the site publisher or by one's own ISP. It's not a perfect solution, but at the least it substantially raises a potential plaintiff's cost of uncovering an anonymous poster's identity.

Recent publicity suggests that in this country there is some potential for political blowback when an internet provider fingers an individual poster, so the decision does offer some comfort to individuals. Excuse my ignorance on this poiint, but isn't the identification of a poster through an IP address a little bit like identifying a driver through a photograph of a car registered to him or her? Especially in the day of open wireless networks, who knows who is operating a particular computer on a particular internet connection?

This is stretching my memory of First Amendment law and public figures, but doesn't a public figure also have to demonstrate evidence of malice to also overcome summary judgment? I recall case law where that alone killed lawsuits, rather than just whether a statement was factual and/or opinion.

The Delaware court specifically ruled that, to get the commenter's identity, the public figure doesn't have to show "malice." Since he or she doesn't know who the commenter is, it's impossible to prove that person's state of mind.

To actually win the libel case, however, yes, "actual malice" must be shown.

I have been apart of forums that have had spammers do far worse things than what happened to that person .

We have done trace routes to get the providers info of those nasty spammers and have informed those providers with statements concerning the debilitating spam that was being dished out by the hackers/spammers.

So far as I know, nothing short of a promise from the providers was offered for the future discontinuence of those spammers actions, that is to say it was a short conversation without a whole lot of promise.

It's nice to see that a person with political influence can make things happen with the right contacts and political pressure.
I sure wish I had that kind of back up for some of the things that I didn't like being said about myself. (Jokingly said)

As for the ruling, I am glad because obviously that person doesn't have the right attitude for the written word on the internet, let alone the right frame of mind for politics .

I still can't believe someone would ever be bothered by personal attacks of a 5-6-7th party nature.

Kinda sad that cahill would resort to a lawsuit over somthing so frivolous.


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» Jack Bog’s Blog - on anonymous comments and your constitutional rights from | Oregon
Jack has posted a story that all bloggers should read. Savvy tech lawyer Jere Webb sends along a doozy of a story that should be of interest to bloggers, to their readers, and especially to those who leave comments on other people’s blogs. The ... [Read More]


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