Careful what you say....... defamation vs. Freedom of speech

Bloggers Busted By Courts - Leegal Zoom,com Author(s): Michelle Fabio, Esq. November 2009 While we can be thankful that the right to freedom of speech allows us to share our opinions through blogging, we may not have the luxury of doing so anonymously. Until recently, many bloggers and blog commenters assumed that if they wrote under an alias or anonymity, their comments couldn't be traced to... [more]

Bloggers Busted By Courts - Leegal Zoom,com Author(s): Michelle Fabio, Esq. November 2009 While we can be thankful that the right to freedom of speech allows us to share our opinions through blogging, we may not have the luxury of doing so anonymously. Until recently, many bloggers and blog commenters assumed that if they wrote under an alias or anonymity, their comments couldn't be traced to them. In light of recent court rulings though, bloggers should think twice about how they exercise their perceived freedom of speech. As with many developing areas of law, there is no consensus on how anonymous bloggers should be treated in the legal system. Up until a few months ago, though, most requests to reveal sources of anonymous online writings were denied. Indeed, the Supreme Court had ruled that the right to anonymous free speech was squarely protected by the First Amendment, namely in the 1995 McIntyre v. Ohio Elections Commission decision: "Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views…Anonymity is a shield from the tyranny of the majority...It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation...at the hand of an intolerant society.." Blogger Unmasked in Model Case Despite the 1995 ruling, two recent cases show courts will not always defer to anonymity regarding online communications. In August 2009, we saw the case of Liskula Cohen, a 37-year-old model who found herself being called "skank" and "ho," among other derogatory descriptions, in anonymous blog posts. Cohen decided to sue the blogger for defamation, but before she could do so, she needed to know who to sue. So her attorneys filed a motion to compel Google, operator of the Blogger.com site that housed the blog in question, to reveal the identity of the blog author. The New York Supreme Court found that Cohen had indeed "established the merits" of a defamation action in that the statements on the blog contained assertions of objective fact, in particular suggesting Cohen was sexually promiscuous, that could form the basis of a defamation claim. Regarding the balancing of First Amendment rights with the importance of anonymity in the exercise of the freedom of speech, the court quoted a 2001 Virginia Circuit Court case: "In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights." The New York Supreme Court explicitly rejected the argument that the Internet should be judged as a place where statements "cannot be reasonably understood as factual assertions." That is, the court declared that users should face legal consequences for defamatory statements and ordered Google to reveal the identity of the blogger to Cohen. Nuanced Approach in Chang case A California Superior Court judge took a slightly different approach to a similar question in the case of Calvin Chang, a former police officer who had sued the University of California on various claims, including breach of a settlement agreement. When the case was discussed on the Google-hosted blog People's Vanguard of Davis, seven comments (five anonymous, two under a screen name) appeared, which Chang believed were made by university managers-in violation of the settlement agreement. Accordingly, Chang subpoenaed Google to produce the IP addresses of those commenters; the People's Vanguard of Davis and its owner moved to quash the records subpoena. On that motion, the judge accepted Chang's assertion that the revelation of the names "appears reasonably calculated to lead to admissible evidence." Also weighing in Chang's favor was that he had offered specific reasons as to why he thought the posts had been made by university managers. Allowing for the possibility, though, that the posts were not made by university employees, the judge crafted a unique compromise in Internet anonymity law: the identities of the commenters would be revealed to an independent third-party investigator, privately retained by Chang. If shown that the commenters were indeed university employees, their names would be revealed; otherwise, they would remain unnamed. Matt Zimmerman of the Electronic Frontier Foundation says this nuanced approach has a better result than if the judge had simply ordered the information turned over. "The court was willing to think of the big picture here," he says. Looking Toward the Future So what is the future of anonymous blogging? Well, if these two decisions mark the beginning of a new trend regarding anonymous Internet communications, the overriding rule must be "Blogger Beware." You'll still be free to express your opinions on blogs and through online communications, but remember that just because the medium has changed doesn't mean the laws of defamation have. Or, in other words, don't post things that could be actionable in a court of law-because even if you think you're writing anonymously, they still may be actionable. And by the way, the unmasked blogger in the Cohen case, Rosemary Port, has now sued Google for $15 million for revealing her identity, so it seems like this issue is far from settled. Stay tuned. [less]