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Maryland Court Limits Internet Anonymity in Defamation Cases

By Kent A. Lambert, Litigation News Associate Editor – May 18, 2009

In a decision ultimately resolved on technicalities, Maryland ’s highest court has announced a standard for deciding whether a claimant can discover the identity of a website user who is anonymously posting allegedly defamatory online comments. Independent Newspapers, Inc. v. Brodie [PDF].

Independent Newspapers, Inc. v. Brodie
The Brodie decision arose out of a defamation action brought by a developer for derogatory comments about him and one of his businesses, posted under pseudonyms to a website forum maintained by Independent Newspapers, Inc.

When Brodie attempted to discover identifying information about certain forum participants from the website-host, Independent Newspapers filed a motion to protect the information under the First Amendment. The trial court denied that motion and ordered the release of the identifying information.

After granting certiorari on its own initiative, the Maryland Court of Appeals reversed the trial judge’s order compelling discovery on grounds Brodie had failed to identify the appropriate forum participants in his complaint. The court opinion also set forth guidance for future cases.

The analysis of this issue requires balancing “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 duress,” the court opinion explains.

Maryland’s Five-Part Test
After surveying three different approaches adopted by courts in Delaware, Virginia, and New Jersey, the Maryland high court decision sets out a five-part test, blending the approaches outlined in the surveyed case law.

Under the Maryland court’s hybrid standard, a defamation plaintiff is required to:

  • seek to give reasonable notice to the anonymous speaker that its identity is being sought;
  • afford the speaker time to oppose the attempt to discover its identity;
  • state with specificity the alleged defamatory statements attributed to the speaker;
  • demonstrate a prima facie case of defamation against the anonymous speaker; and
  • establish that the balance between the First Amendment protections afforded to anonymous speech are outweighed by the strength of the defamation claim and the necessity of discovering the identity of the speaker.

Free Speech on the Internet
Some of the substantive safeguards over content present in media source cases may not be present in cyber-space, notes George Freeman, New York, cochair of the ABA Section of Litigation's First Amendment and Media Litigation Committee.

There are important distinctions—the protections applicable to a reporter’s source arise out of a contract promising anonymity to the source, whereas a blogger typically lacks such protections and essentially takes her chances, assuming the risk that her identity will remain hidden,” Freeman says.

The Internet has become a forum where many individuals think they can say anything without consequences, regardless of their motives or the veracity of their statements,” he observes.

“The operation of an Internet forum allowing and even inviting participants to post anonymously under assumed names may impose at least a moral obligation to protect the user’s anonymity, and certainly raises tensions between protecting privacy and free speech while still ensuring redress for victims of defamation that are quite similar to those present in media source cases,” Freeman says.

Adopting a more practical perspective, Bart L. Greenwald, Louisville, KY, cochair of the Section’s Business Torts Committee, suggests that the new standard in Maryland asks too much in demanding anything more than a good faith attempt at notice and a prima facie case of defamation.

“Where a colorable case of defamation is demonstrated, disclosure within the confines of a lawsuit of the identity of the anonymous speaker, subject to appropriate confidentiality safeguards, should not unduly chill free speech,” Greenwald says.

Keywords: Independent Newspapers, Inc. v. Brodie , Internet, defamation, first amendment rights, technology

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