Say it to my Face: In Defense of Reputation in the Internet Age - Fordham Intellectual Property, Media & Entertainment Law Journal
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Say it to my Face: In Defense of Reputation in the Internet Age

Say it to my Face: In Defense of Reputation in the Internet Age

It is well-settled that the law has long afforded redress to individuals who have wrongfully suffered harm as a result of the injurious speech of another.  By the common law, defamation has been recognized as a colorable action at law for those seeking remedy provided that their complaint is well-pleaded, timely, and establishes at least a prima facie satisfaction of the claim’s elements.1 While acknowledging the First Amendment’s concern for free speech, the United States Supreme Court has also recognized and credited the societal interest in preventing attacks upon reputation.2 However, that the law can afford an injured defamation plaintiff redress may potentially assume, and ultimately require, actual knowledge on behalf of the plaintiff as to the true identify of the defendant(s) alleged to have acted in bad faith and against whom recovery is sought.  But with the integration of the internet into modern society, and the corresponding increase in the popularity of blogs, chat rooms, and online news media, internet users may often be free to anonymously defame another at will, hidden under the veil of pseudonyms and false personas, thereby frustrating any attempt by a defamation plaintiff to protect their reputation from attack.

As one internet lawyer has observed, the expansion of public speech forums into the vast cosmos of cyberspace has led to an apparent “epidemic of [i]nternet defamation”3 because “[m]ost anonymous posters fear no repercussion because websites don’t require any personally identifiable information.”4 But even in instances where a webpage operator does require its users to register with personally identifiable information as a prerequisite to posting remarks, one who might be defamed by a poster and wish to sue may still face problems in litigating, not the least of which is convincing a court to order the Internet Service Provider (ISP) to disclose the identity of the anonymous commenter.

Absent a court order, an ISP has no affirmative duty to comply with a demand for disclosure of a user’s identity.  Indeed, the law would likely punish disclosure.5 But even if a plaintiff filed against a John Doe defendant and petitioned a court to compel discovery, their request would necessarily provoke the thorny question as to which interest is more sacred: the societal interest in protecting reputation, or the speech anonymity interest recognized by the First Amendment.  The Supreme Court has long recognized both interests, but has thus far refrained from addressing the balancing issue.  Consequently, lower state and federal courts throughout the country have reached different results in anonymous internet defamation cases, oftentimes yoking different reasoning to varied standards of scrutiny in deciding whether or not to order an ISP to disclose the identity of a John Doe.6 But the issue has begun to attract the attention of state supreme courts.

In 2005, in Doe v. Cahill7, the Delaware Supreme court became the first state high court in the nation to endorse a test aimed at “strik[ing] the balance between a defamation plaintiff’s right to protect his reputation and a defendant’s right to exercise free speech anonymously.”8 And as recently as February 27, 2009, Maryland’s high court decided Independent Newspapers, Inc. v. Zebulon J. Brodie,9 after having granted certiorari on its own initiative in the hopes of “provid[ing] guidance to trial courts in defamation actions, when the disclosure of the identity of an anonymous Internet communicant is sought.”10

It is well settled that free speech rights protected by the First Amendment receive no less protection when the speaker is anonymous.11 And the Supreme Court has also made clear that such protection necessarily extends to anonymous speech on the internet.12 Furthermore, the Court has remarked specifically on the importance of protecting anonymity in the context of pseudonyms,13 all the while remembering its historical holdings that anonymity of speech is not absolute and that certain types of speech may be devoid of social value, and even injurious.14 But with the introduction of the internet into the calculus, it is now being argued, and accepted, that because it is possible for anyone with a computer and phone line to “become a town crier with a voice”15 that the First Amendment’s majestic ends are thereby being furthered and met.16

Moved by this argument, both the Delaware and Maryland high courts have viewed plaintiff’s defamation claims against John Doe defendants with disapproving skepticism.  Describing them as part of a growing “sue first and ask questions later” trend, both courts characterized the suits generally as, at least in significant part, mere attempts to “unmask the identities of anonymous critics,”17 thereby exposing them to a plaintiff’s “extra judicial remedies . . . [of] revenge or retribution.”18 The courts remark that this could lead to a chilling effect on free speech.  And the majority in Brodie even went a step further in protecting speech anonymity on the internet.

In its decision, the Brodie majority embraced a balancing test originally put forth by the New Jersey Appellate Division in Dendrite International, Inc. v. John Doe No. 3,19 discussed, infra, in endnote six.  The balancing test, as adopted by Maryland and applied, instructs trial courts to “balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.”20 But that holding was not unanimous.  While joining in the result in Brodie, Justice Adkins, writing a concurring opinion in which two other justices joined, rejected the balancing test.  Justice Adkins (wisely) recognized that the “features of Internet dialogue . . . increase the potential for damage to persons who are the subject of [anonymous] communications.”21 The concurring opinion goes on to concede that defamation “occurs more frequently and is broadcast to more people than via any other medium.”22 Yet Justice Adkins’s most compelling point conveys his fear for the rise of a new “superlaw” of Internet defamation, whereby trial courts can employ the balancing test to effectively deny a plaintiff redress – even though they have a colorable claim – simply by deciding that the “defendants interests are greater, on balance, than the plaintiff’s.”23

What is most significant about these two recent state supreme court cases is not merely that they reach the same result – they both uphold the anonymity of the John Does – but that they reflect a very aggressive interpretation of the First Amendment’s free speech anonymity principles, and United States Supreme Court precedent regarding the same.  Further, both courts heeding of “chilling effect” concerns improperly and implicitly equate low-value (or injurious) defamatory speech with high-value political speech, traditionally the category which the Supreme Court has addressed in anonymity cases.  Finally, the notion that “democratization . . . of the nature of public discourse”24 is facilitated because individuals may freely and anonymously express themselves on the internet outright ignores the United States Supreme Court’s warning that speech anonymity may be abused by bad faith actors.25 Indeed, to sanction a balancing test that may ultimately, in its application, protect the anonymity of a bad faith defaming party at the cost of denying a plaintiff redress is not only unjust, it is a perversion of the Framer’s intent and the First Amendment’s command.

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1See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964) (establishing a heightened standard of fault for public figure defamation plaintiffs – “actual malice); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

2 See, e.g., Rosenblatt v. Baer, 383 U.S. 75, 86 (1966) (noting “the important social values which underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation.”); see also Gertz, 418 U.S. at 347 (holding that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for. . .defamatory falsehood[s] injurious to. . .private individual[s].”).

3See Posting of Erik Syverson to Syversonlaw Blog, http://syversonlaw.blogspot.com/search?q=anonymous+online+defamers+revealed (Aug. 6, 2008) (noting that “[m]ost anonymous posters fear no repercussion because websites don’t require any personally identifiable information.”); see also Jennifer O’Brien, Putting a Face to a (Screen) Name: the First Amendment Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 Fordham L. Rev. 2745, 2746 (May 2002) (noting that “unlike real space, cyberspace reveals no self-authenticating facts about identity.”)

4 Id.

5 See, e.g., John Doe No. 1 v. Cahill, 884 A.2d 451, 455 (Del. 2005) (noting that “47 U.S.C. 551(c)(2) requires a court order to a cable ISP and notice to the ISP subscriber before an ISP can disclose the identity of its subscriber to a third party.”) (emphasis added).

6 The most credited standard has been a four-part test established by the New Jersey Appellate Division in Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756, 760 (N.J. Super. Ct. App. Div. 2001).  The test requires that a plaintiff seeking to compel disclosure of a Doe defendant’s identity to:

(1) . . . undertake efforts to notify the anonymous poster that he is the subject of a subpoena or application for an order of disclosure, and to withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to the application.  In the internet context, the plaintiff’s efforts should include posting a message of notification of the discovery request to the anonymous defendant on the same message board as the original allegedly defamatory posting;

(2) to set forth the exact statements purportedly made by the anonymous poster that the plaintiff alleges constitute defamatory speech; and

(3) to satisfy the prima facie or ‘summary judgment standard.’

(4) balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity in determining whether to allow the plaintiff to properly proceed.”

Dendrite, 775 A.2d at 760.  The Delaware Supreme Court in Cahill adopted only the first and third elements of the Dendrite test. Cahill 884 A.2d at 461 (“Accordingly, we adopt a modified Dendrite standard . . . the plaintiff must [only] make reasonable efforts to notify the defendant and must satisfy the summary judgment standard”.); compare Doe v. 2TheMart.com, 140 F. Supp. 2d 1088, 1095 (W.D. Wash. 2001) (“…the subpoena seeking the information was issued in good faith and not for any improper purpose.”) (emphasis added); In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26, 37 (2000) (hereinafter “AOL Case”), rev’d on other grounds sub nom, America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 (Va. 2001) (favoring a good faith basis test over a prima facie standard) (emphasis added); compare Highfields Capital Management L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005) (affirming magistrate judge’s ruling that the plaintiff had to show a “real evidentiary basis” by holding that the “plaintiff must adduce competent evidence. . . .”) (emphasis in original). 

7Doe v. Cahill, 884 A.2d 451 (Del. 2005)

8 Id. at 460 (holding that “before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.”) (emphasis added).  The Cahill Court also retained the “notice” provision of the Dendrite test, discussed supra in note 7.  See also Id. at 461 (“Accordingly, we adopt a modified Dendrite standard consisting only of Dendrite requirements one and three: the plaintiff must make reasonable efforts to notify the defendant and must satisfy the summary judgment standard.).

9 2009 Md. LEXIS 18, 37 Media L. Rep. 1425 (2009)

10 Brodie, 2009 Md. LEXIS at *44.

11 Buckley v. American Constitutional Law Found., 525 U.S. 182, 197-99 (1999); McIntyre v. Ohio Elections Comm., 514 U.S. 334, 357 (1995) (noting that speech anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular:  to protect unpopular individuals from retaliation – and their ideas from suppression – at the hand of an intolerant society.”) (emphasis added); Talley v. California, 362 U.S. 60 (1960).

12 Reno v. ACLU, 531 U.S. 844, 897 (1997) (There is “no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”).

13 McIntyre, 514 U.S. at 341-42 (noting that “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind).

14 See Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) (“Libelous utterances [are] not . . . within the area of constitutionally protected speech . . . .”); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (noting that defamatory speech bears “no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth any benefit that may be derived from [the defamatory speech] is clearly outweighed by the social interest in order and morality.”).

15 Reno, 521 U.S. at 870; see also Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Disclosure in Cyberspace, 49 Duke L.J. 855, 894-95 (2000) (“One of the most significant ways in which the [i]nternet promises to change the nature of public discourse is by allowing more participants to engage in public discussion and debate. . . [thereby] transform[ing] every citizen into a potential ‘publisher’ of information . . . .”).

16 See Cohen v. California, 403 U.S 15, 24 (1971) (remarking that the “‘freedom to think as you will and to speak as you think’ is a ‘means indispensable to the discovery and spread of political truth’ and is essential both to ‘stable government’ and to ‘political change.’”) (quoting Whitney v. California, 274 U.S. 357, 375-77 (1927)).

17 Cahill, 884 A.2d at 457; Brodie, 2009 Md. LEXIS 18 at *44 (citing Cahill).

18 Cahill, 884 A.2d at 457.

19 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

20 Brodie, 2009 Md. LEXIS 18 at *67 (citing Dendrite, 775 A.2d at 760-61).

21 Id. at *68 (citing Lidsky, supra, note 15 at 863 (“The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that ‘anything goes,’ and some commentators have likened cyberspace to a frontier society free from conventions and constraints that limit discourse in the real world.”)).

22 Id. at *69.

23 Id. at *73 (warning that “the majority grants judges that discretion, without specifying how the interests that trial courts are to balance differ from the interests that are already balanced in developing the substantive law of defamation.”) (emphasis added).

24 Brody, 2009 Md. LEXIS 18 at *22 (citing Cahill, 884 A.2d at 455).

25 McIntyre, 514 U.S. at 357 (recognizing that “the right to remain anonymous may be abused when it shields fraudulent conduct [while noting] . . . . that political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.”) (emphasis added).

Michael Nacchio