Ken Paulson: Online anonymity no sure thing in libel cases

  Those who anonymously damage the reputations of others on the Internet may have a rude awakening. They’re not as anonymous as they believe. We’ve seen a number of cases in recent months in which judges have upheld subpoenas that give libel-suit plaintiffs the identities of those who have been posting ugly things about them:

-In July, a federal district judge in Idaho ruled that the Spokesman Review in Spokane, Wash., would have to turn over the name of an anonymous commenter who speculated that $10,000 apparently missing from a political committee might be stuffed inside the chairwoman’s blouse.

-In April, a jury awarded a Texas couple almost $14 million in damages after a group of people anonymously posted more than 25,000 comments about them, including allegations of sexual and criminal wrongdoing. The couple identified the harassers after a court ordered topix.com to reveal identifying information in 2009.

-In November, the 1st District of Illinois Appellate Court overturned an order requiring the Daily Herald in Arlington Heights to identify an anonymous commenter, but opened the door for future plaintiffs. It said names could be obtained when someone “sufficiently states a cause of action for defamation,” a very low bar.

  Three cases don’t make a trend. In fact, data provided by the Media Law Resource Center suggests mixed results in these cases, with some judges finding that commenters’ identities on news-media sites are protected by shield laws. Still, any notion of being protected just because you don’t use your name is misplaced.

  Efforts to pull back the curtain on anonymous commenters are not limited to defamation cases.

  The Shelby County Commission in Memphis, Tenn., has filed a subpoena in federal court demanding the names, addresses and phone numbers of everyone who anonymously commented on any of 45 stories beginning Nov. 19, 2010. The commission is in the middle of a fight over the merger of city and county schools and legislation that permits suburban schools to start their own districts. By obtaining the identities of the anonymous commenters, the commission apparently hopes to show some concerted effort to discriminate against African-Americans.

  The Memphis Commercial Appeal is fighting the subpoena, describing it as “a virtually unprecedented assault on its rights as a newspaper and as the host of an important community forum.”

  Anonymous comments have a long and glorious history in this country. The signers of the Declaration of Independence sent King George an unsigned copy because their conduct could have been prosecuted as treason. When Alexander Hamilton, James Madison and John Jay made the case for the U.S. Constitution, they did so under a pseudonym. Throughout this nation’s history, courts have upheld First Amendment protection for anonymous speech. But freedom to speak anonymously doesn’t free us from responsibility for our speech.

  Deciding whether to protect the privacy of anonymous commenters can be a tough call for news organizations, particularly in difficult economic times. Do news outlets really want to spend huge legal fees defending someone who posted disparaging comments on their site?

  Unlike letters to the editor, which are selected by a newspaper, online comments are posted independently of a news organization. Though many media have mechanisms for removing particularly virulent comments, there’s a strong motive to keep hands off. Federal legislation in 1997 guaranteed that websites that provided public forums online in an all-comers format would be protected from libel suits. The concern was that a media business, with minimal control over the content of the post, could be put out of business because of a single defamatory comment.

  In theory, the legislation also encourages the free flow of opinions on America’s websites. Of course, that legislation couldn’t mandate civility.

  In the University of Iowa’s Journal of Corporation Law last year, attorney Kelly Stavnes said the news media should not go to the mat defending the identity of anonymous commenters, but instead take a cue from Internet service providers. ISPs weigh each subpoena request on the basis of the overall merits of a complaint and whether those seeking the information have other ways to get it.

  In other words, media companies are advised to put a process in place, but largely stay out of the fray.

  Online comments aren’t journalism, but they do provide additional perspective and depth to a news organization’s online report. In the end, though, the responsibility for provocative posts has to lie with the commenter.

  About the author: Ken Paulson  is president and chief executive officer of the First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.

  This article was published by the First Amendment Center.