The Maryland Court of Appeals issued a decision yesterday in Independent Newspapers, Inc. v. Zebulon J. Brodie protecting the identity of anonymous Internet posters and, for the first time, offering guidelines for that state's courts to follow in libel cases before compelling disclosure of online commenters' identities.
The five-step process the court adopted was borrowed from Dendrite Int’l, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) and explicated in detail in yesterday's 43-page majority opinion. It seeks to help trial courts "balance First Amendment rights with the right to seek protection for defamation" by suggesting they:
•Require that plaintiffs notify anonymous parties that their identities are sought.
•Give the posters time to reply with reasons why they should remain nameless.
•Require plaintiffs to identify the defamatory statements and who made them.
•Determine whether the complaint has set forth a prima facie defamation, where the words are obviously libelous, or a per quod action, meaning it requires outside evidence.
•Weigh the poster's right to free speech against the strength of the case and the necessity of identity disclosure.
•Give the posters time to reply with reasons why they should remain nameless.
•Require plaintiffs to identify the defamatory statements and who made them.
•Determine whether the complaint has set forth a prima facie defamation, where the words are obviously libelous, or a per quod action, meaning it requires outside evidence.
•Weigh the poster's right to free speech against the strength of the case and the necessity of identity disclosure.
For further reading, see:
- Ki Mae Heussner, Lawsuit Cracks Open Online Anonymity, ABC News (Feb. 27, 2009)
- Tracy Frazier, You Read What About Me on the Internet?!: Anonymous Online Libel, theLegality (Feb. 26, 2009)
- Bizub v. Paterson, No. 07CV1960, district court, El Paso County, Colorado (unsuccessful attempt to compel The Colorado Springs Gazette to divulge identities of online posters)
- Federal District Court Mandates the Disclosure of the Identify of Online Posters in Yale Law Student Case, Internet Defamation Law Blog (Sep. 22, 2008)
- Kevin F. Berry, How to Unmask an Anonymous Blogger, Law.com In-House Counsel (Apr. 4, 2006)
- The First Amendment Center
- Electronic Frontier Foundation's "Bloggers' Rights" page
- Public Citizen's Internet Free Speech resources page
- Citizen Medial Law Project
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