Anonymous Internet Defamation And Journalist Shield Laws

Via TechDirt, I learned this week of an interesting defamation case in Indiana which tests the boundaries of “journalistic shield” laws. As The Indiana Lawyer describes it:

The Marion County case involves newspaper coverage of Jeffrey Miller, the former president and CEO of a non-profit youth education group known as Junior Achievement of Central Indiana. In March 2010, The Indianapolis Star published an article about an audit the organization was facing and a reader, known as “DownWithTheColts” posted a comment on the online story, saying the state attorney general should investigate Miller about missing money.

Miller and his wife, Cynthia, filed a complaint against officials with Junior Achievement and the Central Indiana Community Foundation on various claims that included defamation, and they later expanded the lawsuit to target the anonymous posters at the Star and Indianapolis Business Journal (a sister publication of Indiana Lawyer). Specifically relating to the Star, Miller sought non-party discovery to turn over information about the identity of “DownWithTheColts.”

Marion Superior Judge S.K. Reid last year ordered that information be turned over. The information is typically an Internet protocol address or Internet service provider that an attorney can use to subpoena the provider for the poster’s real name. The Star contested the disclosure order, and earlier this year Reid ruled that an Indiana journalism shield law that protects reporters from having to reveal their sources does not protect websites from being forced to disclose who made anonymous posts.

The Indiana Law Blog has followed the case closely.

I’ve written a lot about defamation, libel and slander on this blog, and about suggested changes to defamation law (like the proposed federal anti-SLAPP law). To be honest, I’ve grown tired of writing about them lately, because the debates about them online often disregard a practical issue that, to me, cannot be ignored.

Defamation is not a one-size-fits-all claim.  There are very real differences between a private citizen suing a media outlet for reporting erroneous facts about them in a press report, a corporation suing a private citizen for negative opinions about them, and private citizens suing one another over heated remarks. It’s ludicrous to argue that we should treat each situation the same way, but that’s normally embedded within the suggestions put forth, typically by media companies’ insurers lobbying for anti-SLAPP laws by trotting out the little guy — the little guy they want to make sure can’t sue them in the future.

Of course, it’s no secret that the comments on news websites are the cesspool of the internet. Like a moth to a flame, hateful and resentful people flock to the comments of media sites to hurl invective at everyone they can find, including parents who have just lost a child in an accident. It’s the 21st century version of “go pound sand” — “go write something nasty in the comments.” People use it to blow off steam, without much worry over the consequences. 

I don’t know much about Indiana defamation law; I’m much more interested in the question raised by TechDirt, i.e. whether anonymous commentators on media websites should be granted legal immunity. In many ways, they already are: a number of jurisdictions already recognize that the First Amendment requires a plaintiff meet certain requirements before unmasking anonymous writers on the internet under what’s informally known as “the Dendrite rule” after Dendrite v. Doe, 775 A.2d 756 (N.J. Super. App. Div. 2001). Paul Alan Levy wrote a nice article on the subject of subpoenas to unmask anonymous commentators here.

A lot of ink has been spilled over this issue addressing the important issues of free speech, but let add a more practical element. Consider this article about the core of the defamation case that prompted the issue in Indiana — the anonymous comments are, at best, a sideshow to the real case, which is a defamation claim against the plaintiff’s former employer and that company’s current CEO. To the extent the comments contributed at all to the claimed damage to the plaintiff’s reputation, their contribution was minimal. The claims against the anonymous commentator don’t really stand up on their own, which raises questions about why they were brought at all.

Which brings me to my point: there’s no money to be made in suing over anonymous comments on the internet. Not one penny. They’re not insured. They’re not big corporations. They typically have no real funds with which to pay a judgment of any meaningful size, and that’s assuming you can prove to a jury that an anonymous comment on the internet somehow carried enough weight with enough people to harm your reputation. We represent plaintiffs on a contingent fee; if you come into my office and tell me that someone anonymously wrote something nasty about you on the Internet, I’m going to politely refer you to an hourly or flat-fee lawyer who can help you out.

Which means that suing anonymous commentators is something that most of society can’t do even if they wanted to and even if they technically had a meritorious claim, because most people don’t have thousands of dollars lying around to pay a lawyer to pursue a claim that might be meritorious but which won’t in the end provide any compensation.  That’s part of why I support a strong application of the Dendrite rule and, if it would be warranted in other circumstances, a journalistic shield law, to anonymous comments on the internet, because the harm — reduced public expression and debate — outweighs the benefit of providing the top 1% of the country an outlet for correcting every last statement made about them on the internet.

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  • Anonymous

    If I posted something defamatory about you and prostitutes wouldn’t you want to sue me, even if you can’t get any money from me (I’m uninsured, obviously)? It’s about correcting your reputation, not that anyone should believe a ranting anonymous poster on the internet anyway. People need to be careful before they speak, and the First Amendment doesn’t protect harassing, defamatory garbage. Laws prohibiting anonymous defamation should award attorney’s fees so that someone can go forward even if they don’t have “thousands of dollars lying around to pay a lawyer to pursue a claim that might be meritorious.” The internet would be a better place in the end.

    • Anonymous

      It’s a right only the wealthy can exercise. More to the point, Dendrite doesn’t grant blanket immunity, it simply requires a plaintiff show more than just a prima facie case and address First Amendment issues before unmasking anonymous speakers.
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