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.