Topic: Need Not Reveal Web Posters
Lynann's photo
Sat 02/28/09 08:06 AM
Edited by Lynann on Sat 02/28/09 08:08 AM
Some time ago I posted an article about a Texas court decision that required a website to disclose the names of posters who posted anonymously on a website.

In the case a couple who were initially arrested, charged, tried and found not guilty of a sex related crime sought the true identities of people who had posted comments and speculation about the couple during the proceedings that the couple felt were libelous and had defamed them not just in their community but in the whole country.

The couple sought the identities of the posters in order to bring suit against the posters. The last I heard the Texas court agreed that the couple had a right to know the true identities of the posters and had ordered them disclosed. I don't recall if the disclosure was to be public or if the information would only be provided to the couple and their legal representatives.

Seems a Maryland court looks at the issue differently.

This issue is obviously an important one and one I find interesting as law begins to play catchup with internet technologies. Of course because I often post on line I have a personal interest as well.

Any thoughts?
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MARYLAND COURT OF APPEALS
Media Need Not Reveal Web Posters' Identities
Ruling Applies 1st Amendment to Internet

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.

no photo
Sat 02/28/09 08:15 AM
I would regard this situation much the same as I would with a real situation that occurred with a friend's son in real life recently.

This young man had a common name. A neighbor took it upon himself to check out the child predators that may be in the neighborhood. He saw this common name and assumed it was my friend's son. He sent ANONYMOUSLY by mail to EACH person in the neighborhood that this guy was a sex predator. My friend's son has been harrassed and had things thrown at him and has been threatened by many neighbors.

Problem is, all the REAL sex predator had in common with my friend's son was the name. The REAL sex predator was not only 20 years older, but there was a photo of the REAL sex predator when you just look at the web site, AND the REAL sex predator IS IN JAIL!!!

So, yes, he would LOVE to know which anonymous neighbor has libeled and slandered him and has had him harrassed and threatened for something he had nothing to do with.

If this were a case of someone online doing this to him, he would actually have a manner by which to investigate and sue for such a miserable and misguided stunt.

So far, all he was able to do was catch the attention of a tv news personality to interview him to explain his plight and have hope that his neighbors saw the interview.

yellowrose10's photo
Sat 02/28/09 08:20 AM
curious...if everyone is using a handle...then is it really defamation since it's to a made up name and from a made up name?


no photo
Sat 02/28/09 08:33 AM

curious...if everyone is using a handle...then is it really defamation since it's to a made up name and from a made up name?




If applied to real life, if I wrote something maligning someone's name but signed it "Mickey Mouse", would I not still be culpable?

Lynann's photo
Sat 02/28/09 08:33 AM
It's not the name you post under it is what you post that is in question.

Here's a legal definition of defamation from findlaw.com:

defamation
['de-fe-'ma-shen]

1: communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person
(see also libel slander New York Times Co. v. Sullivan in the Important Cases section)
(compare disparagement false light slander of title)

2: a defamatory communication
Example: every repetition of the defamation is a publication -- W. L. Prosser and W. P. Keeton
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


Knowingly communicating false statements about another person that cause injury etc. Having ones feelings hurt or being offended are not injury by the way.

That's where lots of these cases get interesting.





yellowrose10's photo
Sat 02/28/09 08:35 AM


curious...if everyone is using a handle...then is it really defamation since it's to a made up name and from a made up name?




If applied to real life, if I wrote something maligning someone's name but signed it "Mickey Mouse", would I not still be culpable?


I guess, for example....in here...if you said something about me...that would be against yellowrose10 not Jane Doe

it's just a thought. I don't know the laws that would apply. I was just curious about this

yellowrose10's photo
Sat 02/28/09 08:42 AM
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.

I would consider this slander because an actual name was used

something to think about (not sure what the laws actually say about these)..just throwing it out there

Truth is the best defense for defamation
It is not defamation if nobody believes you
It is not defamation to voice your opinion

Lynann's photo
Sat 02/28/09 09:12 AM
The legal considerations in this area are complex and evolving.

Regarding defamation and the internet I found an article at http://writ.news.findlaw.com/hilden/20080723.html interesting.

At any rate,I found what I think is a fairly informative but long explanation at:http://www.kevinboone.com/lawglos_Defamation.html

I hope this explanation of defamation sheds some light on the issue.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Defamation

Last modified: Thu Feb 23 16:37:37 2006

Defamation is the tort of causing damage to a person's reputation or standing. While modern society recognizes reputation as something of value, and seeks to protect it through the law of defamation, it has also to be accepted that freedom of speech is also important, particularly in the political arena. Consequently there is a tension between the law of defamation, and the residual right to freedom of speech, now protected by Art.10 of the ECHR. This particular issue is discussed in more detail in the article DefamationAndFreedomOfSpeech.

For historical reasons, defamation is divided into Libel and Slander; although this distinction is regarded by many as somewhat aribtrary, it remains important in practice. Whether the defamation at issue is taken to be libel or slander, the claimant will have to show four things:

# the statement was defamatory, and
# the defamation was actionable, and
# it referred to the claimant, and
# it was published to a third party

If the claimant can show that prima facie he has been defamed, the defendant may be able to rely on certain defences. The most obvious of these is that the imputation was, in fact, true; but there are others.

The rest of this article examines each of these criteria in turn. It will also consider the complications that arise when defamation is alleged against someone other than the original author or speaker, and the problems of repeated defamations arising from the same publication.

Was the statement defamatory?

The traditional definition of a defamatory imputation is that it exposes the claimant to hadred, ridicule, or contempt. This is a rather narrow definition, and more modern fomulations are that the statement would ``tend to lower the claimant in the estimation of right-thinking members of society'' (SimVStretch1936), and cause the claimant to be ``shunned and avoided'' (YousupoffVMGM1934). Obviously there can be some disagreement about what `right-thinking' means. Consequently, it is still common for defamation to be tried by jury. It is a question for the judge whether the imputation is capable of being defamatory; but it is a question for the jury whether it actually was defamatory. The imputation need not allege any particular conduct -- an attack on the claimant's personal qualities, even those he cannot do anything about -- might also be defamatory. For example, in Berkoff v Burchill, it was held to be defamatory to describe the claimant as `hideously ugly'.

Mere vulgar abuse is not defamatory nor, usually, are vituperative statements made in anger.

The test for whether an imputation was defamatory is an objective one. The motive of the defendant, on the whole, is not relevant to whether there was a defamation (but it might affect his defences -- see below). Similarly, the fact that the imputation was not believed is of no importance.

Normally, the words of the alleged defamation will be given their ordinary, everyday meanings. However, problems arise in circumstances where words are capable of more than one reading. In innuendo, for example, words carry an innocent meaning but are capable of being read as defamatory if the reader has additional knowledge. It is not an innuendo, strictly speaking, to allege something that a reasonable, well-informed person might draw an adverse conclusion from. For example, in LewisVTelegraph1964 a company claimed that a statement that it was being investigated by the Fraud Squad was defamatory, because there was an innuendo that it was guilty. However, this was not a `true' innuendo -- no special knowledge was required on the part of the reader, and the ordinary principles of defamation would apply. A `true' innuendo arises where a statement is unobjectionable in itself, but will be interpreted by a narrower class of people who have some special knowledge. The textbook case is TolleyVFry1931 -- an amateur golfer depicted with the manufacturer's chocolate bar in his pocket. Most people would not see any great harm in this, but to amateur sportsmen the innuendo was that Tolley was accepting money to advertise the defendant's products. In a true innunedo, the claimant has to demonstrate that readers would have the special knowledge that render a statement defamatory; in Tolley the claimant was able to do so.

A less subtle, but equally problematic, situation is where words simply have more than one meaning in everyday usage. In such cases, the common-sense position of Hartt v Newspaper Publishing plc applies: the court has to assume that the reading public is not `avid for scandal', and can accept an innocent meaning over a defamatory one if it seems appropriate from the facts. In addition, where newspaper articles are concerned, Charleston v News Group suggests that a reasonable reader will read the whole of an article, not just the headline.

Was the defamation actionable?

As a general principle, libellous defamation is actionable per se, that is, whether or not any particular loss or damage was occasioned by the defamation. Slanderous defamation is usually actionable if the claimant can show SpecialDamage, and in certain other cases (see Slander for details).

As well as showing that the defamation is actionable in itself, the claimant will have to show that he has standing, that is, he is entitled to sue. Private individuals can sue, as can companies. The estates of persons deceased cannot sue in defamation, which is an exception to the general principle that causes of action in tort survive death. Governmental bodies, on the whole, do not have standing to sue in defamation, for policy reasons (DerbyshireCCVTimes1993).

Did the statement refer to the claimant?

This is a very contested area of law in itself. Remember that the test for defamation is objective -- it is no defence that the imputation was never intended to refer to a specific individual. Clearly, the situation is straightforward where a particular person is named in the imputation; difficulties tend to arise where a person can be identified from the context. The general test is whether a reasonable person would believe that the imputation referred to the claimant, whether or not it was intended to (MorganVOdhamsPress1971).

In general, only persons (legal or natural) can be defamed; not bodies. Consequently, if a defamation is directed against a large group of people, members of that group will not be defamed unless they are identifiable (Knuppfer v London Express Newspapers Ltd).

Was the statement published?

To succeed in the action, the claimant must show that the imputation was published, that is, it reached at least one other person than the claimant and the defenant. What if A writes a defamatory letter to B, and that latter is in fact opened and read by C? The test here is whether it is `reasonably forseeable' that the letter will be interecepted. In general, if a letter is marked `confidential', the defendant will be able to claim that its interception was not forseeable.

Recently there has been some concern about what constitutes `publication' in these days of global telecommunications and the Internet. It is not defamation to carry information from one place to another, if the carrier has no need to be aware of the content or any control over it (see `Innocent publication' below). If this were not the case, then telephone companies could be held liable for defamatory telephone calls, and this clearly seems absurd. However, an action for defamation may lie against a person who repeats a defamatory imputation, even if he expresses disbelief of its content. So things get a bit awkward when we consider bulletin board services, for example. One reasonably analysis is that a bulletin board is merely a conduit for information, just like a telephone line. Another is that the bulletin board is a publication, like a newspaper, and that the operator a the service is liable in the same way as a newspaper that publishes defamatory articles written by its staff. In GodfreyVDemonInternet1999, the HighCourt decided that the latter interpretation was to be preferred -- a bulletin board is a publication, and the operators were responsible for its content.

Now, undoubedly the operators of a bulletin board do have, in principle, control over its content, however difficult this control would be to exercise in practice. However, what about a mail server, which simply holds e-mail messages until they are picked up by the intended recipient? What about web hosting agents, that simply provide storage space for other people to use? At present it is unclear whether these constitute publication or not.

Godfrey illustrates very well two things: the difficulty the law has in keeping pace with developments in technology, and the the delicate balance that has to be struck between the protection of a person's repuation, and the freedom of speech. In general, it is probably fair to say that in the UK this balance weighs more heavily in the side of protection of reputation than it does in most other modern states.

Defences to an action in defamation

There are various defences, complete and partial, available to the defendant.

# Consent
# Innocent publication
# Offer of ammends
# Justification
# AbsolutePrivilege
# QualifiedPrivilege
# Fair comment
# Limition of time

Consent needs no further explanation; AbsolutePrivilege and QualifiedPrivilege are described elsewhere.

Innocent publication

This defence was created by s.1 of the DefamationAct1996. It is a defence for anyone other than the author, editor, or publisher of a defamatory imputation to show that he took reasonable care, and had no reason to believe the statement was defamatory. This defence protects people who disseminate information with no real reason to inquire too deeply into its contents, such as libraries and Internet bulletin boards. However, the defence is lost if the defendant has been made aware of the defamation but has taken no steps to remove it from circulation (Godfrey).

Offer of ammends

Under s.2 of the 1996 Act, a person who is alerted to the fact that he has published a defamatory imputation can offer to pay compensation and publish a retraction. If the offer is accepted, no further action can against the defendant. If it is not, the defendant still has a defence if he can show that he had no reason to believe that the imputation referred to the claimant, and that it was defamatory and untrue. The effect of making the offer is, in a sense, to switch the burden of proof to the claimant. Ordinarily, if the defendant wishes to rely on the defence of justification, he must prove on the balance of probabilities that the imputation was true. Under s.2, it falls to the claimant to prove that it was not true.

Justification

There is, of course, also a defence in showing that the defamatory remark was substantially true. It need not be perfectly true (AlexanderVNorthEasternRailway1865), nor does it matter if the true statement is published with an improper motive. In general, person A has no right to complain if person B accurately reports things that are to his discredit. However, there are a few exceptions. Under the Rehabilitation of Offenders Act (1974) truth is no defence where the the defendant makes a malicious defamatory reference to a spent conviction, even if it is true.

Fair comment

It is a defence that the defamatory imputation was `fair comment', and not made maliciously. The defendant must show that he

# published a comment or opinion, not a statement of fact, which was
# fair and honest, and
# it was in the public interest to do so.

There is a distinction between a statement that is `in the public interest' and one that is `interesting to the public'. In LondonArtistsVLittler1969, Lord Denning said that a matter was in the public interest if it was concerned with events or decisions that affected people at large.

By requiring that the imputation be `fair and honest' the defence is made unavailbe to completely capricious and unfounded allegations. The imputation must be based on some demonstrable facts.

Limitation of time

Under s.5 of the DefamationAct1996, the limitation period for defamation actions is one year (as opposed to the usual six-year limit for actions in tort). However, as we shall see, each new repetition of the same original imputation is taken to be a new publication, and thus restarts the timer.

Repeated defamations

In the US, any action for defamation must be brought within a particular time of the original publication event. In the UK, this is not the case. In fact, each new repetition of the defamatory imputation constitutes a new publication. This has two awkward implications. First, a person who has published an imputation unaware that it is defamatory is not protected because more than a year has elapsed since the original defamation. Time starts to run from the moment he repeated the imputation. This is particularly troublesome for internet publication -- in Loutchansky v Times Newspapers it was held that a Web article was republished every time it was read; consequently the time for action will never expire. Second, since the repeated publication is a tort that flows from the original publication, the original publisher or author will be liable for every repeated publication, subject to the usual rules on causation. For example, in Slipper v BBC, the BBC were held liable for derogatory remarks that were taken up and repeated by newspapers.

Defamation actions against defendants other than the original author or speaker

Under English law, an action for defamation can be directed at more-or-less anybody who has any connection with the publication. If the defamation is made in a newspaper, for example, then the victim can act against the author, anyone (e.g., editor) who decides to include the defamatory article in the newspaper, the publishing company, anyone involved in distributing the newspaper to shops, and even the newspaper retailers. The problem is that the further away from the source one gets, the less likely it is that the defendant will have control over the content of the publication.

A newspaper retailer, for example, is unlikely to be responsible for the content of a newspaper. Now, s.1 of the Defamation Act protects a person who disseminates a libel whilst being unaware that it is a libel, provided due care is taken. But why, it can be argued, should a newpaper retailer have to take care over the content of newspapers? Or a library take care over the content of the books it stocks? Nevertheless, the position in English law is that such organizations do have to take care over the publications they stock.

yellowrose10's photo
Sat 02/28/09 09:16 AM
Lynann....i found this one also:

What Defenses Are Available To People Accused of Defamation?
The most important defense to an action for defamation is "truth", which is an absolute defense to an action for defamation.

Another defense to defamation actions is "privilege". For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.

A defense recognized in most jurisdictions is "opinion". If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context - that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met. Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.

A defense similar to opinion is "fair comment on a matter of public interest". If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.

A defendant may also attempt to illustrate that the plaintiff had a poor reputation in the community, in order to diminish any claim for damages resulting from the defamatory statements.

A defendant who transmitted a message without awareness of its content may raise the defense of "innocent dissemination". For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter.

An uncommon defense is that the plaintiff consented to the dissemination of the statement.

http://www.expertlaw.com/library/personal_injury/defamation.html

maybe I have watched too much court TV in my time laugh

yellowrose10's photo
Sat 02/28/09 09:18 AM
so does the 1st example you gave in Texas apply to this as defamation? I'm still curious about handles in chat rooms, forums, online etc if the real names aren't used. do the websites have any liability in it if it's not monitored or dealt with?

Fanta46's photo
Sat 02/28/09 10:50 AM
Dont you have anything better to do?

yellowrose10's photo
Sat 02/28/09 10:51 AM
NOPE:wink:

Fanta46's photo
Sat 02/28/09 10:59 AM

NOPE:wink:


Not you babe.
Your assumptions are absolutely in line with mine on this.
It would appear from the article that they are in line with the Maryland court's as well.

yellowrose10's photo
Sat 02/28/09 10:59 AM


NOPE:wink:


Not you babe.
Your assumptions are absolutely in line with mine on this.
It would appear from the article that they are in line with the Maryland court's as well.


oops I thought you were trying to distract me again :laughing:

Fanta46's photo
Sat 02/28/09 11:01 AM
The thought did enter my mind.:wink:

Lynann's photo
Sat 02/28/09 05:27 PM
Truth is the number one defense to both slander and libel which are defamation.

Sometimes...what the truth is is hard to uncover.

yellowrose10's photo
Sat 02/28/09 05:42 PM
how would this apply online when people have handles???? i can understand if they used the other person's real name

AndrewAV's photo
Sat 02/28/09 05:49 PM
"That's what the internet is for. Slandering others anonymously" --Banky Edwards