Ruling in what it called a “confrontation between defamation law and the use of the World Wide Web,” Maryland’s highest court made it harder last week for plaintiffs in libel suits to unmask anonymous online critics.
In its Feb. 27 ruling in Independent Newspapers Inc. v. Brodie, the Maryland Court of Appeals said those who file libel suits against unknown online posters must establish a prima facie, or basic, case of defamation before a trial court should order an Internet service provider to release the names of those posters.
The high court had to balance two competing interests — the right of individuals to engage in anonymous speech online and individuals’ right to protect their reputations from online smearing. The court split 4-3 regarding one element of the applicable legal standard: whether courts also must balance an anonymous poster’s free-speech rights against the strength of the defamation claim. Four justices believed the balancing prong was necessary, while three justices contended that it would create a “superlaw of Internet defamation.”
The case involved a defamation claim filed by Maryland businessman Zebulon J. Brodie who sued Independent Newspapers Inc., which runs Newszap.com, over comments made by anonymous posters known only by the screen names “CorsicaRiver,” “Born & Raised Here” and “chatdusoleil.” Brodie sued for defamation and conspiracy to defame in May 2006 over comments made the preceding March about the dirtiness of a Dunkin Donuts store Brodie owned in Centreville, Md., and the burning of a building Brodie sold to a developer.
Brodie sued both Independent Newspapers and the three anonymous posters for both sets of comments. In November 2006, a trial judge dismissed Independent Newspapers from the case, finding that it was entitled to immunity under Section 230 of the Communications Decency Act. Section 230 provides a broad degree of immunity to “providers and users of interactive computer services” for content created by third parties. The trial judge determined that Independent Newspapers was such an interactive service provider.
The trial judge also dismissed the defamation claims concerning the comments about the burning of the building, reasoning that any defamation was targeted toward the developer, not Brodie. However, the judge ordered Independent Newspapers to reveal the identities of the three unknown posters.
Later Brodie and his counsel sought to uncover the identities of two additional posters, “RockyRaccoonMd” and “Suze,” who actually wrote the allegedly defamatory comments regarding Brodie’s food establishment. The trial judge also ordered Independent Newspapers to reveal the identities of these two posters.
On appeal, the Maryland high court determined that Independent Newspapers did not have to reveal any of the five anonymous posters. It reasoned that Independent Newspapers did not have to reveal the names of the first three because none of them spoke on the food-establishment claim — the only part of the defamation claim that applied to Brodie.
In addition, the court said, Independent Newspapers did not have to reveal the identities of the two posters who wrote the allegedly defamatory material, RockyRaccoonMD and Suze, because Brodie did not sue them in his lawsuit and did not amend his lawsuit to include them.
However, the Maryland high court did much more than decide the fate of Brodie’s defamation claim. As the court explained in its ruling: “We granted certiorari in this case not merely to sort out the record, but to provide guidance to trial courts in defamation actions, when the disclosure of the identity of an anonymous Internet communication is sought.”
Writing for four justices, Judge Lynne A. Battaglia surveyed the legal landscape with regard to how other courts had balanced the right to engage in online anonymous speech and the right of an individual to uncover the identities of anonymous defamers.
The Maryland court found that the most appropriate of the standards was the one used by the New Jersey appeals court in Dendrite International Inc. v. Doe (2001). That court determined that a defamation plaintiff seeking to unmask online John Does must establish facts sufficient to establish a prima facie case of defamation. Under the Dendrite standard, if the court determines there is such a prima facie case, it then balances the First Amendment right of anonymous speech against the strength of the prima facie case presented and the need for disclosure.
The Maryland high court declined to adopt the more speech-protective standard articulated by the Delaware Supreme Court in Doe v. Cahill (2005). In that case, the Delaware high court ruled that defamation plaintiffs must meet a “summary judgment standard” before identities of online defamers will be revealed. That court said that a plaintiff “must support his defamation claim with facts sufficient to defeat a summary judgment motion.” To survive a summary-judgment motion, a litigant must show that there are genuine issues of material fact in dispute that must be resolved by a factfinder (a jury or judge). The Delaware high court wrote that “allowing a defamation plaintiff to unmask an anonymous defendant’s identity through the judicial process is a crucial form of relief that if too easily obtained will chill the exercise of First Amendment rights to free speech.”
The Delaware court also declined to adopt a less speech-protective test — called the good-faith standard — which provides that a defamation plaintiff need only show a “good faith basis” or meet a “motion to dismiss” standard for the defamation suit to uncover the identities of the online defamers.
The Maryland high court determined that the Cahill summary-judgment standard tilted the balance too far toward the interests of the anonymous speakers, while the good-faith standard tilted the balance too far toward the interests of defamation plaintiffs. According to the Maryland court, adopting the summary-judgment standard “would undermine personal accountability and the search for truth, by requiring claimants to essentially prove their case before even knowing who the commentator was.” However, the Maryland court also determined that the good-faith standard “would inhibit the use of the Internet as a marketplace of ideas, where boundaries for participation in public discourse melt away.”
The Maryland court determined that the Dendrite standard “most appropriately balances a speaker’s constitutional right to anonymous Internet speech with a plaintiff’s right to seek judicial redress from defamatory remarks.”
Under the adopted standard, trial courts hearing defamation suits against online John Does must (1) require the plaintiff to undertake efforts to notify the anonymous posters they are the subject of legal action; (2) “withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application”; (3) require the plaintiff to identify the exact statements made by each online poster that is allegedly defamatory; (4) determine whether the lawsuit has met the basic elements of a prima facie claim of defamation; and (5) “balance the anonymous posters’ First Amendment rights against the strength of the prima facie case of defamation.”
Three justices — in a concurring opinion by Judge Sally D. Adkins — agreed with most of the main opinion, but objected to the additional balancing prong. “In my view, the balancing test is unnecessary and needlessly complicated,” she wrote. “I fear that the majority’s decision invites the lower courts to apply, on an ad hoc basis, a ‘superlaw’ of Internet defamation that can trump the well-established defamation law.”