The Learning Curve

New tricks for an old dog.

Online anonymity

A tip of the hat to Huffington Post: Court Upholds Anonymity On The Internet for the heads-up, but the statement,

“Maryland’s highest court has ruled in favor of Internet anonymity, saying Web sites involved in defamation suits don’t have to reveal the identity of readers who post comments on their site.”

. . . is misleading.

Independent Newspapers, Inc. v. Brodie, No. 63 September Term, 2008 (Md. 2/27/2009), (PDF of original) stated:

The Court reviewed the record and determined that Brodie had not identified the appropriate forum participants in his complaint. Because Brodie failed to assert his defamation action against the correct individuals, the Court reversed the trial judge’s order compelling the discovery of the forum participants’ identities.

For guidance of the trial courts when future cases arise, the Court suggested a process to balance First Amendment rights with the right to seek protection for defamation, citing with approval the test from Dendrite Int’l, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Thus, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should,

(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;

(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 and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;

(4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and

(5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

This is a far cry from ruling “in favor of Internet anonymity.” Plaintiff Brodie screwed up.

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Written by Tom Fox

03/01/2009 at 2:10 pm

Posted in Legal, Online anonymity

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