By Jarrod F. Reich
and Bill Kenworthy
One of the greatest free-speech advantages the Internet provides is the ability to broadcast material from all over the world to all over the world. It is unlike pamphleteering in that one can disseminate his or her grievances, concerns or other beliefs to a potentially unlimited audience. Indeed, the Supreme Court in Reno v. ACLU (1997), said that, by using the Internet, “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.”
Anonymity is also an option for the Internet user on a Web site, newsgroup, chat room, Web log or message board. And with anonymity may come an increased willingness to criticize — other people, corporations, public officials, universities — and increased boldness in doing so. At the same time, more criticism may bring more lawsuits — when online criticism (anonymous or not) strays over the line into libel, a lawsuit may result. According to an October 2006 USA TODAY article, more than 50 libel lawsuits have been filed over the past two years stemming from online postings.
Libel lawsuits have been leveled against individuals, both known and anonymous; against the bloggers who let others post comments on their blogs; and against employees by their employers over comments or items posted on a blog.
A lawsuit over an alleged libel that happened to occur online would proceed like any other libel action (see Libel & defamation topic in Press section) if the accused were known and named.
For instance, in Bucks County, Pa., Middletown Township Supervisor Robert McMonagle created a Web site delivering the “inside scoop” on township news. A lawsuit was filed against him in December 2005 by Pasquale T. Deon Sr., board chairman for the Southeastern Pennsylvania Transportation Authority and Pennsylvania Turnpike Commissioner. Deon claimed that “numerous falsehoods” were published about him on the Web site.
In Minneapolis, Blois Olson, the president of a public-relations firm and a Democratic strategist and political commentator, filed a lawsuit against Michael Brodkorb, publisher of the blog Minnesota Democrats Exposed, for comments posted on that site. Olson claims that a story Brodkorb wrote about Olson and his PR firm was “absolutely false” and demanded that Brodkorb retract the story or face legal action.
Both actions are pending. They are just two examples of several pending online defamation suits in which the offending party is known.
Anonymity: Who wrote that?
But what happens when the alleged libeler is anonymous? The offended individuals, corporations or other entities may try to smoke out their critics — and, they hope, suppress their criticism — by filing what have been called cyber-SLAPPs. “SLAPP,” coined by the University of Denver’s Political Litigation Project, stands for “strategic lawsuit against public participation.” (See SLAPP topic in Petition section.)
The target of an anonymous online attack typically files a lawsuit against a “John Doe” defendant and then attempts to discover John Doe’s identity. This is done through subpoenaing the Internet Service Provider (or ISP, such as America Online or Earthlink) to reveal the identity of the person who posted the offending material.
In a current pending lawsuit, a plaintiff alleges that the company he worked for did exactly that.
In Pennsylvania, Clifton Swiger filed suit against his former employer, Allegheny Energy Inc., for, among other things, abuse of process and wrongful use of civil proceedings. Swiger posted an anonymous message critical of the company, its diversity-training program and its management on a message board dedicated to discussion of the company.
Three months later Allegheny filed a John Doe suit for breach of fiduciary responsibility and breach of loyalty. An emergency motion to rush a subpoena to Yahoo!, directing the ISP to turn over all records regarding the identity, whereabouts and records of the anonymous poster, was granted. Swiger alleges that he was never informed of the suit or of the subpoena, so he had no opportunity to defend himself.
Yahoo! complied with the subpoena and, a month after filing it, Allegheny Energy dropped its John Doe suit. About two weeks later, Swiger was fired for “placing a racially derogatory posting on the Yahoo! message board in violation of Allegheny Energy’s Positive Work Environment expectations.”
Swiger’s lawsuit is in the U.S. District Court for the Eastern District of Pennsylvania. The company’s actions were filed in the Court of Common Pleas of Philadelphia County.
In most cases involving anonymous online libel, courts have dismissed the lawsuits and/or have refused to have the identity of the anonymous critic revealed.
The seminal (and only federal) case on this issue is Doe v. 2TheMart.com, Inc. In this 2001 case, shareholders of 2TheMart.com filed suit against the company amid allegations of fraud. Some of the disgruntled shareholders made their discontent known by posting messages critical of 2TheMart.com on Internet bulletin boards. The bulletin boards were created and maintained by InfoSpace, an ISP to which these shareholders subscribed. The messages, one of which referred to officials of 2TheMart.com as “lying, cheating, thieving, stealing lowlife criminals,” were posted anonymously or by people using such pseudonyms as “Truthseeker,” “Cuemaster” and “NoGuano.” 2TheMart.com responded by presenting a subpoena to InfoSpace in an attempt to obtain the identities of these people.
A U.S. District Court in Washington state allowed NoGuano to object to the subpoena (as “John Doe”) and the court sustained the objection. The First Amendment, said the court, protects the anonymity of Internet speech. It called anonymous speech a “great tradition that is woven into the fabric of this nation’s history,” and added that “the ability to speak one’s mind on the Internet without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate."
“People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court,” the district court said.
2TheMart.com argued that the right to speak anonymously did not create any corresponding right to remain anonymous after speech. Once Truthseeker and his cohorts made public accusations, the company said, they had to own up to them, their identity became fair game, and the company had the right to know who its accusers were.
But the court disagreed, warning that “if Internet users could be stripped of [their] anonymity by a civil subpoena ... this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights . ... Unmeritorious attempts to unmask the identities of online speakers have a chilling effect on Internet speech.”
The court devised a strategy to balance the interests in protecting a party’s online anonymity with preserving an opposing party’s right to sue for libel if warranted. The ruling announced a four-part test, such that the identity of an anonymous Internet user could be disclosed if: “(1) the subpoena seeking the information was issued in good faith and not for any improper purpose; (2) the information sought relates to a core claim or defense; (3) the identifying information that is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.”
Applying this test to the facts before it, the district court denied the issuance of the subpoena, concluding that 2TheMart.com’s real purpose in seeking it was to intimidate its critics into silence.
A similar case was decided by the Delaware Supreme Court in September 2005. In this case, a town councilman sued an anonymous poster to a Delaware state news site for defamation. The councilman obtained a court order requiring Internet service provider Comcast to reveal the identity of the subscriber who had posted the criticisms. The subscriber was informed of the court order by Comcast and filed a protective order. The lower court denied the motion for the protective order and ruled that the subscriber’s name could be obtained from Comcast. The subscriber appealed the ruling.
As with the Washington case, the Delaware Supreme Court was concerned about chilling the First Amendment rights of anonymous Internet speakers. So the court set a fairly high standard “to strike the balance between a defamation plaintiff’s right to protect his reputation and a defendant’s right to exercise free speech anonymously.”
The Delaware court relied upon the summary-judgment standard. That means “a defamation plaintiff … must support his defamation claim with facts sufficient to defeat a summary judgment motion," the court said. In other words, the defamation plaintiff must prove that a defamatory statement was made, or his case will be summarily dismissed. The court said it considered proof that a defamatory statement was made to be the “the most important element.” Reading the statements in the context of a blog, the court found the statements were not defamatory. Thus the councilman’s bid to unmask the anonymous poster was defeated.
What about moderators?
Another twist in the online-libel story occurred in June 2003, when a three-judge panel of the 9th U.S. Circuit Court of Appeals addressed the question of whether "a moderator of a listserv and operator of a website who posts an allegedly defamatory e-mail authored by a third party can be held liable for doing so."
In the case, Batzel v. Cremers, a defamatory e-mail message was sent to a Web-site operator, who edited the message and selected it for posting. The operator said he believed the sender intended the message to be made public. The sender, however, later claimed that he never intended the information to be made public; he merely wanted the site operator to be aware of it.
The 9th Circuit panel — relying on Section 230 of the Communications Decency Act of 1996, which immunizes “providers and users of interactive computer services” from liability for defamatory material posted by third parties — held in a 2-1 decision that the operator’s editing and selection of the e-mail message did not place the operator outside the statute’s protection. The divided panel also concluded the operator could not be liable if he reasonably believed the sender intended for the message to be posted. The case accordingly was remanded to the trial court to determine whether the operator should have known the information was not intended for online publication.
Comparably, a federal judge in Washington relied on Section 230 in 1998 when he ruled that America Online could not be sued for allegedly defamatory comments posted by Internet gossip columnist Matt Drudge. Former White House staffer Sidney Blumenthal had sued Drudge and AOL over a report (which Drudge later retracted) that said Blumenthal had a “spousal abuse past that has been effectively covered up.” Blumenthal sued AOL because the company had a contractual arrangement to pay Drudge $3,000 a month for his reports.
In April 1998, U.S. District Judge Paul L. Friedman dismissed AOL from the lawsuit, quoting an earlier federal appeals court ruling that said Section 230 “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.” Blumenthal dropped his suit against Drudge in 2001.
A similar case was decided by a U.S. District Court in Pennsylvania in May 2006. A promoter and event planner, Anthony DiMeo III, filed suit against Duke Law School graduate and Web-site operator Tucker Max for anonymous comments about DiMeo made by visitors to Max’s site. DiMeo argued that Max, because he selected and edited posts that appear on the site, has editorial control and should be viewed as the provider of the offensive content.
The court disagreed with DiMeo and found that Section 230 protected Max from prosecution. Because Max didn’t write the posts, but only provided a forum, he was not held liable.
Another such case, Barrett v. Rosenthal, was decided by the California Supreme Court in November 2006. Here, the court overturned an appeals court decision that held an Internet discussion-group operator liable for statements made in an article she republished on the group Web site. The California high court said “the Court of Appeal diverged from the prevailing interpretation of section 230.” Discussing the act, the court added: “By declaring that no 'user' may be treated as a 'publisher' of third-party content, Congress has comprehensively immunized republication by individual Internet users.” The court did acknowledge “that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.”
In March 2007, a federal district court in California ruled on a different republication issue in the case Sundance v. Cone (02-cv-2258). The court held that linking to statements already published on the Web, without additional comments being added, does not constitute republication in terms of the statute of limitations. The court found that linking to previously published statements is more reasonably akin to the publication of additional copies of the same edition of a book, not to the publication of a new edition. As such, the court determined, the statute of limitations in this particular case began when the statements at question were originally published, not when the defendant posted the hyperlinks to the statements. Accordingly, the court dismissed the case, ruling that the statute of limitations had expired.
For the plaintiff
Recently, bloggers have had some legal setbacks, which some legal analysts say may be a trend.
In January 2006, a jury in Forsyth County, Ga., found blogger David Milum guilty of libel. This was the first time a blogger had lost a libel case in the United States. Milum was taken to court by lawyer Rafe Banks after Milum wrote in his blog that Banks had delivered bribes to judges on behalf of drug dealers.
Banks’ attorney told jurors that Milum’s allegations stemmed from a disagreement between the two when Banks was representing Milum. Milum eventually replaced Banks and demanded he pay back $3,000 in fees. Banks refused. After making the bribery allegations, Milum posted a comment on his site saying, “Rafe, don’t you wish you had given me back my $3,000.”
More recently, in October 2006 a Florida jury awarded Sue Scheff, the founder of Parent’s Universal Resource Experts Inc., $11.3 million in a defamation lawsuit. Scheff brought the suit against Carey Bock, a Louisiana woman who had criticized the business practices of Scheff and her company on Internet message boards. Bock accused Scheff and her company of being “crooks,” “con artists” and “frauds.” Bock, who reportedly has no assets, did not appear in court and offered no defense.
In another Florida case in August 2006, the president of Ligonier Ministries Inc., Timothy Dick, filed suit against blogger Frank Vance for defamation. Vance runs a blog called “Contending for the Truth,” which is solely dedicated to covering Ligonier Ministries, a Christian educational organization that publishes and broadcasts religious material. Vance has repeatedly criticized Ligonier Ministries and Dick, labeling him as “not just an unethical man but a shark,” “a very corrupt man,” and “a thieving con artist.” Dick withdrew his lawsuit on Sept. 25, 2006, reportedly because Vance could not be found to be served with court papers.
A notable element of this lawsuit is that Dick also took the extraordinary step of filing for an injunction asking the 18th Judicial Circuit Court for Seminole County, Fla., to prohibit Vance from publishing further “false statements.” With the dismissal of the lawsuit, no injunction was granted, but it would have amounted to an advance-publishing ban also known as prior restraint. Prior restraints violate the First Amendment unless the speech is obscene, defamatory or creates a clear and present danger to society. It is rare for a judge to impose a publishing ban.
Rare, but not unheard of. On March 30, 2006, the clerk of courts for Winnebago County, Wis., Diane Fremgen, filed a lawsuit against Web-site operator Dennis Payne, among others, for libel after anonymous users posted two sexually explicit comments about Fremgen. In addition to asking for monetary and punitive damages, Fremgen sought an injunction to remove the content and temporarily shut down the site.
The same day, Fond du Lac County Circuit Court Judge Robert Wirtz ordered Payne to “suspend all operations and publication of the website … until further order” because “failure to temporarily restrain the Defendants (Payne) from continuing the website … would continue to cause [Fremgen] irreparable injury to reputation” and that “no other suitable relief is available.”
Five days later the site was allowed to resume operation after Payne came to an agreement with Fremgen and the court. Payne had to agree to several conditions regarding future operations of his site, including banning the two anonymous users. Fremgen said she would continue the lawsuit against those users.
Another site was ordered shut down in May 2006. U.S. District Judge James Turk ordered a Web site that criticized Hargrave Military Academy in Chatham, Va., to discontinue operation. The site was started by Jerry and Melissa Guyles, parents of a student who was expelled from the academy for stealing. After failing to get the decision reversed, the Guyleses sent letters to all parents of Hargrave students telling their side of the story, criticizing the academy’s president and asking if they had any problems with the academy.
After the Guyleses were sent a cease-and-desist letter from the academy, they took their cause to the Internet. Statements they made included describing Hargrave President Wheeler M. Baker as “a bumbling, inarticulate excuse of a leader,” saying Baker and the academy condone hazing and “cadet fighting in the barracks” and that decisions are based on financial reasons rather than student well-being, such that the academy “capriciously and subjectively expel[led] students while keeping their parents money.”
Hargrave Academy sued the Guyleses, seeking a restraining order against the Web site and about $1 million in monetary damages. In a manner similar to the Fremgen case, Judge Turk ruled that Hargrave Academy and Baker “have no adequate remedy at law” — meaning no award of damages to the plaintiff would provide sufficient relief — and that they “have suffered and will continue to suffer substantial and irreparable injury” from the Guyleses’ Web site. He awarded no damages, but ordered the Web-site operations to cease and told the Guyleses they could not contact parents of Hargrave students, visit the campus or say anything bad about Hargrave or its president.
The parties reached a settlement in July 2006. The terms are confidential, but the Web site remains inactive.
The decisions of both of these judges were criticized by First Amendment advocates, who categorized the verdicts as heavy-handed and contrary to First Amendment values.
Other online-libel issues
In May 2003, the Associated Press reported that the North Dakota Supreme Court upheld a $3 million libel verdict against a former University of North Dakota student accused of using an Internet site to spread lies about a physics professor.
Glenda Miskin, of Crookston, Minn., argued that a North Dakota court did not have jurisdiction over her Web site because its content was not "directed uniquely to the state of North Dakota." The state's highest court disagreed, in a unanimous decision written by Chief Justice Gerald VandeWalle.
Miskin's Web site included links to articles about UND issues and staffers, VandeWalle wrote, along with items about physics professor John Wagner and Wagner's attorney, William McKechnie. And the state chief justice said that in any case, a North Dakota court could assert jurisdiction over Miskin personally because she lived in North Dakota when many of the allegedly defamatory incidents occurred.
Miskin is a former UND student. She took a physics class from Wagner in the fall of 1998, but was suspended from school the following year after a university student-relations committee concluded she was stalking and harassing Wagner. Miskin contended she and Wagner exchanged a number of sexually explicit e-mail messages. Wagner denied Miskin's claims.
Wagner sued Miskin in June 2000, arguing she was trying to ruin his reputation and interfere in his business relationships. In April 2002, a jury awarded Wagner $3 million in damages, which the state Supreme Court upheld in 2003.
A similar case recently emerged in Minnesota. Aaron Clarey, an economist, radio host and blogger from Minneapolis, filed a lawsuit against California resident Sanjay Krishnaswamy claiming, among other things, slander.
Clarey was alerted to a Web site started by Krishnaswamy in Clarey’s name. It used Clarey’s photograph and included postings in his name. One post on the blog referred to Latino men as “a bunch of misogynistic losers” and stated that “Mexican women were stupid.” It went on to say that “if any of you miserable brown wetbacks want to try to make something of it … you just come on and see Aaron Clarey and get the beat-down you deserve.”
As with the North Dakota case there are jurisdictional issues. Under a subsection in a Minnesota law it is not clear whether Clarey can sue a person living out of state for defamation. The statute states that an out-of-state entity cannot be sued for defamation. This case is currently pending in a Minnesota state court.
Updated May 2007