By Denise Ouellet
This week, a Maryland Court of Appeals ruled in favor of protecting the identities of commentators posting potentially damaging comments about a local business online. The court reversed the lower court’s ruling and said that NewsZap.com, an online forum run by Independent Newspapers did not have to disclose the real names of users commenting under the guise of pseudonyms. This decision is in line with growing trend among courts to protect Internet free speech.
Like other courts before it, this court adopted a balancing test between the right to anonymous speech and the plaintiff’s ability to obtain recourse for alleged defamatory comments. Courts walk a fine line in trying to protect anonymous free speech in instances where the comments border on defaming an individual or corporation. If the courts don’t allow the identities to be revealed, it could leave an injured party without a named party to move forward with litigation. But should the court simply make the hosts of these sites reveal users true identities just because there’s no alternative means of seeking damages?
Where the users are not anonymous, plaintiffs have an easier time moving a claim forward. Take for instance, the consumer forum Yelp!, that encourages users to comment and rate local businesses – at least five lawsuits have already arisen based on comments from unsatisfied customers. Several of the cases came about in other service industries after a California chiropractor settled a libel suit with a customer who posted damaging reviews on Yelp! How do you think the courts should balance the rights of anonymous reviewers and the rights of small business owners whose reputations can be everything?
Related cases:
Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001).
In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26 (2000).
5 comments
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March 3, 2009 at 6:11 pm
Justin Silverman
listened to a great program today on npr that addressed the growing trend of “cyberbullying.” though the issues there appear to be more malicious then consumer complaints, the controversy of anonymous posters and the law — communications decency act section 230 — that helps protect them is the same.
i suggest you listen to the program. it also features attorney marc randazza who represented a defendant in a cyberbullying case.
the program description and the audio can be found here: http://www.onpointradio.org/shows/2009/03/cyber-harassment/
March 5, 2009 at 11:05 am
Kristin Billera
I just read a similar article here (http://www.google.com/hostednews/ap/article/ALeqM5jWX0nZ54u1rZ5Ol33vgRsTrS0xXwD96MRS0O0) about doctors requiring their patients to sign agreements that they won’t post comments about “about the doctor, ‘his expertise and/or treatment.’” online.
Between your article, the one I just read about and Noonan v. Staples, it’s seeming more and more like negative comments(even if it’s true) and opinions are being nudged away from 1st Amendment protections.
Luckily, in this article, the attorney quoted, Jim Speta, says he thinks that the power discrepancy between doctors and patients would persuade the court to allow such posts about doctors to continue.
March 5, 2009 at 6:09 pm
Denise Ouellet
That’s really interesting. I would like to see how a doctor-patient case would pan out in court where there’s a contractual agreement. Getting back to cyberbullying, it looks like a high school student is now suing Facebook in addition to her former classmates for creating a group in which they trash-talked her. She claims that Facebook should be responsible for what its users posts. Check out the full story at:
http://news.cnet.com/8301-17852_3-10187531-71.html
March 9, 2009 at 9:03 pm
Justin Silverman
an example of one blogger who is aggressively defending his right to protect sources and the rights of others to post anonymous comments:
http://www.citmedialaw.org/blog/2009/virginia-blogger-invokes-reporters-privilege-challenge-subpoena-seeking-anonymous-commente
April 2, 2009 at 6:10 pm
Wikileaks Presents New Legal Questions « Media and Communications Law Society
[...] could lead to even more serious legal dilemmas concerning anonymity on the Internet than reviews of businesses or [...]