Plaintiffs in several defamation lawsuits are seeking court orders to identify anonymous Internet users, raising First Amendment concerns regarding the protections afforded to anonymous communicators on the Internet.
In February 2009, Maryland’s highest state court quashed a subpoena requesting disclosure of the identities of five anonymous participants in a discussion forum and outlined a five-part test for the state’s trial courts to use in evaluating whether to order disclosure in such cases. But in Texas, a state trial court ordered a news Web site to reveal the identities of 178 anonymous commenters in an online news forum. Another subpoena in Virginia requested identifying information for commenters on a blogger’s site and, more notably, included a request for the Internet Protocol (IP) addresses for all viewers of the blog post, a development that may have significant implications for online speech.
Maryland High Court Rejects Subpoena to Identify Anonymous Commenters, Adopts Five-Part Test
Maryland’s highest state court ruled on Feb. 27, 2009 that a newspaper publishing company does not have to reveal identifying information for anonymous commenters who posted allegedly defamatory comments regarding Centreville, Md. businessman Zebulon J. Brodie on an online community forum. The court said it decided to hear the case in order to provide guidance to the state’s trial courts in future defamation cases in which plaintiffs seek identifying information about anonymous Internet forum participants from a Web site host.
The Court of Appeals of Maryland heard the case, Brodie v. Independent Newspapers, Inc., No. 17-C-DG-0116509, 2009 WL 484956 (Md. Feb. 27, 2009), on appeal from the trial court, bypassing the mid-level appellate court.
The court adopted a five-factor test developed by the Superior Court of New Jersey, Appellate Division in Dendrite International v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) for evaluating defamation claims concerning anonymous commenters on Internet forums. In evaluating whether disclosure is appropriate using the test, the court should require the plaintiff to notify the anonymous posters that they are the subject of a subpoena; allow the anonymous poster a reasonable opportunity to file opposition to the subpoena; require the plaintiff to identify the exact statements allegedly made by each anonymous poster that are actionable; determine whether the complaint has set forth a prima facie defamation case; and, provided the other four elements are met, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity.
Judge Lynne A. Battaglia wrote that the test addressed the complexities of the disclosure decision effectively. “On the one hand, posters have a First Amendment right to retain their anonymity and not to be subject to frivolous suits for defamation brought solely to unmask their identity. On the other, viable causes of actions for defamation should not be barred in the Internet context,” Battaglia’s opinion stated.
Brodie filed his defamation lawsuit on May 26, 2006 against Independent Newspapers, Inc. (INI), which hosts the online news forum Newszap.com, and three anonymous defendants. Newszap.com’s “Centreville Eyesores” discussion thread featured allegedly defamatory comments made by the three anonymous defendants in March 2006 regarding Brodie’s decision to sell his home to a developer. The three anonymous defendants were identified by the screen names “CorsicaRiver,” “Born & Raised Here,” and “chatdusoleil” on the discussion thread. Brodie also alleged that other comments on the Newszap.com forum regarding the Dunkin’ Donuts store he owns were defamatory, including the statement that the store is one “of the most dirty and unsanitary-looking food-service places I have seen.”
On March 12, 2007, the trial court dismissed the charges of defamation based on statements regarding Brodie’s home because they were about the developer that bought the home from Brodie and not about Brodie himself, but it ordered INI to comply with the subpoena requesting identifying information for the commenters who made statements regarding the Dunkin’ Donuts store. However, Brodie’s counsel revealed that the comments about the Dunkin’ Donuts store were authored by two commenters who were not included in Brodie’s original subpoena, “RockyRacoonMD” and “Suze.” Brodie then served another subpoena on INI requesting identifying information for all five commenters. The trial court ordered INI to comply with the subpoena on Feb. 19, 2008, and INI appealed the decision.
Judge Battaglia’s opinion stated that Brodie had not pleaded a viable claim for defamation. The Court of Appeals affirmed the trial court’s dismissal of the charges with respect to comments regarding Brodie’s former home. With respect to the Dunkin’ Donuts comments made by “RockyRacoonMD” and “Suze,” the court said the statute of limitations barred claims against them in February 2008, when the trial court ordered INI to reveal information regarding their identities. Therefore, the court determined INI’s motion to quash the subpoena should have been granted.
The Reporters Committee for Freedom of the Press (RCFP) filed an amicus brief in the case on July 28, 2008, asking the appellate court to apply the Dendrite standard to evaluate requests for disclosure of anonymous message board commenters’ identities. The RCFP emphasized the importance of protecting anonymous speakers on the Internet. “In light of the extensive First Amendment interests in preserving a robust marketplace of ideas on the Internet, the Court should establish a strict standard to protect the anonymity of online speakers,” the brief stated.
Texas Judge Orders Topix.com to Identify Anonymous Commenters
A Texas judge ordered news Web site Topix.com on Feb. 5, 2009 to comply with a subpoena to identify 178 anonymous commenters in an online forum who allegedly defamed a Texas attorney and his wife, both of whom were charged in April 2008 with aggravated sexual assault of a former client.
Judge Dana Womack of the 348th District Court in Tarrant County, Texas, approved the order for the subpoena in the defamation lawsuit, Lesher v. Does 1-178, No. 348235791-09 (Tex. D.C. 2008), filed against Topix.com, a news Web site that hosts online message boards. The Tarrant County Court issued a letter rogatory, a request to the Superior Court of California, County of Santa Clara to obtain discovery from Topix.com, which has an office in Palo Alto, Calif. Once information provided in response to the subpoena is collected by the Santa Clara court, the letter rogatory requests it be forwarded to the Leshers’ attorney. On Feb. 26, 2009, Topix.com filed a motion to quash the subpoena in the court in Santa Clara. A hearing will be held on March 27, 2009.
A former client of attorney Mark Lesher filed charges against Lesher and his wife Rhonda in April 2008, alleging they sexually assaulted her on July 26, 2007 when she was spending a week at the Leshers’ ranch after seeking Mark Lesher’s help in divorce proceedings, the Clarksville (Texas) Times reported in a Jan. 19, 2009 story. The Leshers were found not guilty of the charges on Jan. 16, 2009 after a jury trial in Collin County, Texas, according to the Clarksville Times.
After the lawsuit was filed against the Leshers in April 2008, according to the their complaint, the Leshers said that over 1,700 anonymous defamatory comments authored by 178 commenters regarding the allegations were posted on news forums on Topix.com. “They were perverted, sick, vile, inhumane accusations,” Mark Lesher said, according to a Feb. 7, 2009 Dallas Morning News story.
The Leshers filed a lawsuit against Topix.com and the anonymous defendants, alleging the statements were defamatory and requesting unspecified damages for reputational, emotional, and psychological harm. The Leshers’ 365-page complaint lists each of the 178 commenters’ online pseudonyms, a portion of their comments, and the initial charge of defamation.
In a letter dated February 4 posted on Topix.com, attorney William Pieratt Demond, who represents the Leshers, listed the screen names of the 178 defendants and said that the Leshers had filed a defamation lawsuit against them. The letter also stated that the anonymous posters could come forward and negotiate a settlement with the Leshers. The letter is available online at http://www.topix.com/forum/city/idabel-ok/TAFNU5RQSNM7CSOCU. Texas Lawyer reported in its February 24 story that Demond said he hopes to obtain the IP addresses for the anonymous commenters from Topix.com, along with any other available identifying information concerning the posts.
Texas Lawyer reported that Topix.com CEO Chris Tolles said the Web site can only provide IP addresses, which he said would “potentially provide a step in identifying the individuals involved. It’s not a final step. It’s not a definitive way of getting someone’s information. But, that said, it’s the only way that there’s a definitive way of reaching that person through us.”
Tolles addressed the subpoena in a February 7 Dallas Morning News story. “We do not just give up people’s privacy. We’re very, very careful about that,” Tolles said. However, he added “If there is a line that’s been crossed from a libel standpoint – and it seems reasonable – we do, in fact, cooperate with the courts.”
Virginia Blogger Subpoenaed For Information Regarding Online Viewers, Commenters
The plaintiff in a defamation lawsuit against a Charlottesville, Va. weekly newspaper has served a broad subpoena on a blogger who wrote about the defamation suit, requesting identifying information for anonymous commenters, and more unusually, the IP addresses associated with every viewer of the blog post, in order to gain evidence for the original lawsuit against the newspaper.
In his lawsuit Garrett v. Better Publications, No. CL08000197-00 (Va. Cir. Ct. 2008), filed Dec. 19, 2008 against the publisher of the newspaper, The Hook, in the Circuit Court for the County of Buckingham, Thomas Garrett alleged the newspaper defamed him in its coverage of state criminal proceedings in which Garrett was prosecuted for charges of forgery.
Blogger Waldo Jaquith posted a story Dec. 23, 2008 on the blog cvillenews about The Hook’s stories. Calling Garrett “a train wreck in slow motion,” Jaquith wrote that it was “impossible to ignore the really sketchy aspects” about Garrett, a chicken farmer, radio show host, and Hollywood publicist. Jaquith is not a party to Garrett’s lawsuit against The Hook.
On Jan. 15, 2009, Garrett sent Jaquith a subpoena requesting identifying information for all of the viewers of Jaquith’s post regarding the defamation lawsuit and 81 anonymous individuals who commented on it. The information requested by the subpoena included the names of persons posting comments, their IP addresses, the IP addresses of viewers of the story online, any e-mail communications sent or received by Jaquith relating to his December 23 blog post, and any notes and documents relating to information obtained or created in writing the December 23 post.
In a Jan. 30, 2009 post on the Citizen Media Law Project Web site, Sam Bayard, a fellow at the Berkman Center for Internet & Society at Harvard University, wrote, with respect to the request in the subpoena for information identifying viewers of the blog post, “Disclosure of this information could be a potentially huge breach of reader privacy, and nothing seems to justify it. Remember, the lawsuit in question involves another newspaper and website altogether, so the number and (rough) location of cvillenews.com readers has no bearing on the reputational damage caused by the original, allegedly defamatory posts on the newspaper’s website.”The post is available online at http://www.citmedialaw.org/blog/2009/virginia-blogger-targeted-outrageous-subpoena.
Jaquith drafted and submitted a motion to quash the subpoena on Jan. 31, 2009. He cited the constitutional journalist’s privilege based upon the First Amendment in asserting that the information Garrett sought to compel from him by means of the subpoena was a privileged communication and therefore not subject to disclosure. Jaquith also argued that Garrett’s subpoena failed to comply with the requirements of Virginia Code 8.01-407.1, which governs efforts to identify anonymous Internet speakers in civil proceedings.
Virginia Code 8.01-407.1 states that subpoenas seeking identifying information for anonymous online speakers must include an assertion that specific statements by the anonymous communicator are tortious or illegal, that other reasonable efforts have been made to identify the communicator and have been fruitless, and that the identity of the communicator is needed to advance a claim or is materially relevant to the claim. Jaquith’s motion to quash argued Garrett’s subpoena did not describe verbatim the allegedly illegal communications on the blog cvillenews.
On Feb. 13, 2009, Garrett submitted a motion to compel asking Jaquith to comply with the subpoena, stating that he believes that many of the comments on Jaquith’s blog post were made by employees of Better Publications, the publisher of The Hook, rather than disinterested third parties. Therefore, he said the anonymous comments could help substantiate Garrett’s claims Better Publications acted with malice in his defamation lawsuit.
– Amba Datta
Silha Research Assistant