ISP should not identify blogger - court

Victory for free speech on the internet - for Americans

In a victory for free speech on the internet, the Delaware Supreme Court on Wednesday reversed a lower court ruling that a council official, suing over remarks posted online by an unknown blogger, could force the blogger’s ISP to reveal his identity.

The official first had to prove that the remarks were capable of a defamatory meaning – and he had not, said the Court.

The case concerned postings by “Proud Citizen”, an anonymous blogger on a local website known as the Smyrna/Clayton Issues Blog, in September last year.

Proud Citizen called into question the abilities of Smyrna Town Council member Patrick Cahill, referring to his alleged “character flaws”, “mental deterioration”, “failed leadership” and describing him at one point as “Gahill”.

In November 2004, Cahill and his wife sued the blogger, described as John Doe No 1 in the court papers, and three other anonymous bloggers, claiming that John Doe No 1 had accused Cahill of suffering from “mental defects and diseases” and that the misspelling of his name implied he was “engaging in extramarital, homosexual affairs.”

Without notice to the bloggers, the Cahills sought to identify their critics through a subpoena to their ISP. The ISP, Comcast, notified the four bloggers.

The bloggers immediately filed for a protective order, on the grounds that the disclosure would violate their First Amendment right to criticise a public official anonymously, but the trial court denied the motion.

It took a “good faith” approach to the question of when a person pursuing a defamation action could force the disclosure of his defamer’s identity.

Accordingly, the Cahills had to show a “legitimate, good faith basis upon which to bring the underlying claim”; that the identifying information was “directly and materially related to their claim”; and that it could not be obtained from any other source. In the trial court’s opinion, the case was proved.

John Doe No 1 appealed, and on Wednesday, the Delaware Supreme Court reversed the lower court ruling.

The Supreme Court ruling

In the opinion of the five judges of the Delaware Supreme Court, the “good faith” standard was not tough enough.

“We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all,” wrote Chief Justice Myron Steele, giving the opinion of the court.

The court was concerned that plaintiffs could easily meet the standard of the good faith test without having a particularly strong defamation case, with the result that trivial cases might be brought for purposes of intimidation or revenge.

The court therefore decided to apply a “summary judgment” standard to the case – namely, that the plaintiff must be able to show that he has a basic defamation claim against the defendant before the court will order an ISP to identify that defendant. The plaintiff does not have to show actual malice, said the court, as this would be near impossible to prove without knowing the defendant’s identity.

In addition, wrote Steele, plaintiffs harmed by an internet blog have an instant means of remedying the situation – blogging themselves. He explained:

“The plaintiff can thereby easily correct any misstatements or falsehoods, respond to character attacks, and generally set the record straight. This unique feature of internet communications allows a potential plaintiff ready access to mitigate the harm, if any, he has suffered to his reputation as a result of an anonymous defendant’s allegedly defamatory statements made on an internet blog or in a chat room.”

But the summary judgment standard does not apply just to defamation discovery issues related to the internet, said the court. It applies to defamation discovery issues in any form of publication internet blog have an instant means of remedying the situation – although chat rooms and blogs do have unique issues relevant in considering the defamation claim itself.

“Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely,” wrote Chief Justice Steele.

On this occasion, he explained, in the context in which they were given, the “Proud Citizen” postings were only opinion and no reasonable person would have interpreted them as factual. Accordingly they were not defamatory.

This meant that the Cahills had not satisfied the “summary judgment” test, and the discovery motion could not be granted. Responses

Paul Alan Levy, a lawyer with Public Citizen, which filed a motion to the court in support of John Doe No 1, welcomed the ruling.

“This is the first state Supreme Court to squarely decide the standards to govern John Doe subpoena cases,” he said. “The court’s determination to require sufficient evidence before a critic is outed will go a long way toward reassuring citizens that they remain free to anonymously criticise public officials.”

According to Kurt Opsahl, staff attorney at rights group the Electronic Frontier Foundation (EFF), which also joined in the “friends of the Court” brief, "Bloggers have a strong First Amendment right to speak anonymously."

"It is critical that plaintiffs' claims face a stringent test before a court unmasks online critics, lest we reduce the vibrant public debates on the internet to the cautious views of a select few voices," he added.

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The ruling

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