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.

But wait — it’s not quite the news you may have been hoping for, you PennLive troll you.  It seems the appellate court’s ruling was based on a lack of identifying information and/or a too-vague subpoena:

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 article goes on to print the court’s suggestion for balancing First Amendment rights with a victim’s rights under defamation laws.  What’s impressive is that we’re seeing some good old-fashioned common sense applied here.

First, the plaintiff should go back to the online venue and attempt to notify the poster that they’re the subject of a subpoena.  This helps short-circuit any sneak attack by the plaintiff by at least making a reasonable effort to alert the poster that they may be the subject of legal action.  Suddenly I have visions of every third message on PennLive being one troll threatening another with a subpoena.  ”OMG I R GOIN 2 SUE U FOR LIEBL”

Second, the plaintiff needs to clearly identify which statements are in question.  I interpret this as the difference between “a bunch of trolls at PennLive said bad things about me” and “on 2/28/09 at 8:20am, a poster using the alias ‘floor9′ posted ‘yeah, I really think the Ron Paul nutjobs have gone over the top on this one’”.  This is excellent; this helps prevent a subpoena’s use as a scare tactic.  Or, more appropriately, this helps prevent one from using the threat of a subpoena and subsequent litigation as a means of stifling free speech.

Third, the plaintiff needs to present evidence that they’ve actually been harmed by the poster’s actions.  Remember, this is in the discovery phase; we’re not talking about the actual trial yet.  An example might be “Customer Joe Smith cancelled his $5000 order with my business, which was placed on 2/1/09.  Smith explained that he cancelled this order because of comments posted by floor9 on 2/10/09.”  In other words, the court will need to be shown a good reason why the subpoena should be allowed.

Put simply, the Maryland appellate court seems to be saying that yes, a person has a right to defend him or herself against libelous comments made online.  And yes, that person has a right to use the legal system to determine the true identity of the poster.  But that person also has an obligation to prove to the court that damages have actually occurred as a direct result of one or more posters’ comments.  Finally, the plaintiff has an obligation to demonstrate the link between each individual comment and his claim.

I stand by my previous post in that people need to be responsible for what they say.  This isn’t a carte blanche invitation for anyone to post anything without fear of repercussion.  In fact, it’s quite the opposite.

To apply this in a real-world sense, see my post about Ciocca Honda.  Let’s imagine that someone at the upper echelons of Ciocca’s management decides they don’t like my post, and they want it down.  If Maryland law applied here, Ciocca would have to demonstrate an actual loss over my post (possible, but doubtful).  They’d have to cite that post specifically (easy enough).  And they’d have to notify me, most likely by mailing a certified letter to my domain registrar’s address, that they are going to subpoena my ISP and/or my registrar for my personal information.

But all of that would be moot.  Regardless of what Pennsylvania laws apply, truth is an absolute defense in defamation accusations.  What I presented in my post about Ciocca was (sadly) a factual representation of events combined with my clearly-identified opinions.  My defense would be truth.

So what does all this mean?  It seems that the days of a business or organization holding a blogger or commenter hostage with baseless threats of legal action are winding down.  We do have a First Amendment, and we have the right to use it — wisely.  While I’m happy to see that the courts are holding individuals responsible for libelous posts, I’m even happier to see that they’re throwing a wet blanket over vast, far-reaching, overly-broad, abusive lawsuits.

To put it another way, use your constitutional rights wisely.

PS – I am not a lawyer.  This post is simply my opinion.  Like all content on this site, this post should not be used as a replacement for legal advice.  If you find yourself involved in a defamation case, you should seek assistance from a legal professional.

I just found this interesting post over on Topix Chambersburg:

http://www.topix.net/forum/source/chambersburg-public-opinion/TCB69SLLD4383GT6N

Quoting from the article:

The company that owns and operates the York Daily Record/Sunday News readers’ comment posting Web site will release the identities of people who anonymously posted comments to a story about the stabbing death of Andrew Wright, according to sworn statements Friday in county court.

Prosecutor Timothy Barker informed Judge Thomas H. Kelley on Friday that an attorney for Topix LLC said the Internet Protocol addresses and personal information of the posters “has been preserved” and will be turned over when the company is served with a subpoena by the York County District Attorney’s Office.

This isn’t really news, but it might be a wakeup call to people who post comments — especially the trolls on PennLive.  When you post a comment, photo, video — really, anything — on a website, your IP address is logged.  What this means for the non-technical crowd is that someone with valid legal tools (such as a subpoena) can find out what you posted, even if you use a fake name and throwaway email address.

Let’s say your IP is 68.24.38.1.  And let’s say your ISP is Discount Donny’s Internet-O-Rama.  From your home computer, you visit PennLive and begin posting comments about the subject of a story.  You use the name “TruthForStupidSheeple” and make libelous statements about a particular individual.  Said individual gets mad, hires a lawyer, and subpoenas the folks behind PennLive.  PennLive will turn over the requested information (let’s say the subpoena asked for your IP and the email address you registered with).

Then the lawyer goes to work.  It’s very easy to see which ISP owns an IP.  The lawyer would then subpoena Discount Donny’s Internet-O-Rama to find out which customer was assigned the IP of 68.24.38.1 during the time given.  Discount Donny’s Internet-O-Rama, not willing to risk contempt of court and possible criminal liability for refusing to honor a subponea, will hand over your information faster than … well, pretty fast.

Next thing you know, the lawyer has your name, home address, and what effectively amounts to an affadavit from the ISP stating that you were the person responsible for that IP at that time.  A few weeks later, and you’re in court explaining why your First Amendment rights trump libel charges (and generally, they don’t).

So here’s my guaranteed way to defend yourself against libel (written defamation), slander (spoken defamation), and other related charges:

1. Post the truth.  Truth is an absolute, bullet-proof defense against defamation.
2. Label opinion as such.  Imagine I’m the subject of that story.  You can say “In my opinion, floor9 deserves what he gets”.  You can not say “floor9 is guilty” (unless this is the truth, and you have evidence to back it up).

This particular story wasn’t an issue of libel, mind you.  It’s about potential witnesses to a crime.  Regardless, the moral of the story stands the same:  You are not anonymous.  Your first amendment rights are neither unlimited nor unconditional.  Don’t post anything that you wouldn’t put down in writing with your own signature.

UPDATE:  As of 2/26/09, Chris Tolles, CEO of Topix, says he may or may not comply with the subpoena.  He also seemed to suggest that stories alleging that he had already complied were premature.  Challenging a subpoena is certainly possible, but actually quashing one requires a combination of circumstance, skill, and luck.   From what I can understand — the article is a little tough to swallow — Tolles appears to be saying that compliance with the subpoena is at his sole discretion, because Tolles is not bound by Detective Martz’s statement in court that Martz had spoken to Tolles’ attorney, who told Martz that Tolles would comply.

Either I’ve got that unbelievably wrong — a distinct possibility — or Tolles is getting his legal advice from some “OMG LEGAL SELF-DEFENSE FAQ”.