Naming names

Court weighs whether to identify authors of critical and anonymous postings on the Internet

December 28, 2008|By Tricia Bishop | Tricia Bishop,tricia.bishop@baltsun.com

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

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