The Maryland Court of Appeals ruled on Friday that Independent Newspapers, which runs the forum Newszap.com, could not be forced to reveal the identities of online posters who had written critical comments about a Dunkin’ Donuts. The owner of the restaurant, Zebulon J. Brodie, claimed that the commenters had defamed him and called on Independent Newspapers to reveal their identities.
An article in the Washington Post (which filed a brief in support of Independent Newspapers) quotes Sam Bayard from the Citizen Media Law Project at Harvard Law School who says,
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. . . . Courts are going to require the plaintiff or others seeking identities to make a heightened showing that they have a valid cause of action.
In the decision, the court defined five steps for responding to future cases, stating:
Thus, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.
In the end, the court is right to conclude that a “sue first, ask questions later” approach is at odds with our system of free speech. Making an aggrieved party essentially prove to a court first that he has been defamed and damaged by an anonymous comment–before any attempt to unmask the maker of that comment–is a good way to protect the speech rights of those who have something to say.