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Media Need Not Reveal Web Posters' Identities
Ruling Applies 1st Amendment to Internet

By Aaron C. Davis
Washington Post Staff Writer
Saturday, February 28, 2009

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.

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