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MD Appellate Ct. Sets "New Standard" For Anonymous Posting 260

Posted by ScuttleMonkey
from the or-you-could-just-clean-the-place-up dept.
A Maryland court of appeals has set what they are calling a new "standard that should be applied to balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation." The court overturned an earlier ruling that would have required NewsZap.com to turn over the names of anonymous posters who posted negative remarks about the cleanliness of a Centreville Dunkin' Donuts. "In a defamation case involving anonymous speakers, the ruling said, courts should first require the plaintiff to try to notify the anonymous posters that they are the subject of a subpoena. That notification could come in the form of a message posted to the online forum in question, and the posters must be given sufficient time to respond. The plaintiff must then hand over the exact statements in question, so the court can decide whether the comments are obviously defamatory. Finally, the ruling says, the court must weigh the anonymous poster's right to free speech against the strength of the defamation case and the necessity of disclosing the poster's identity."
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MD Appellate Ct. Sets "New Standard" For Anonymous Posting

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  • wow... (Score:5, Insightful)

    by YouWantFriesWithThat (1123591) on Monday March 02, 2009 @01:12PM (#27041603)
    that ruling actually makes sense. there is no way that it will be allowed to stand!
    • Re:wow... (Score:5, Insightful)

      by Anonymous Coward on Monday March 02, 2009 @01:26PM (#27041831)

      No, it does not. An anonymous statement holds no weight and thus cannot be defamatory. At least, not enough to rise to the level of court intervention. These types of cases should be thrown out (without wasting all this effort) and our government's resources put to better use. And Dunkin' Donuts needs to grow a pair.

      • Re:wow... (Score:5, Insightful)

        by Chyeld (713439) <chyeld&gmail,com> on Monday March 02, 2009 @01:32PM (#27041917)

        I'd agree with you, but well, you posted as an AC and thus have no weight in this discussion. Too bad.

        • Re:wow... (Score:5, Insightful)

          by Samschnooks (1415697) on Monday March 02, 2009 @01:50PM (#27042143)
          That's right! That's why I lie and create an assumed name to post under. Now, I have much more credibility and weight than an AC!
          • Re:wow... (Score:5, Insightful)

            by Chyeld (713439) <chyeld&gmail,com> on Monday March 02, 2009 @02:01PM (#27042291)

            You and an AC have equal credibility, thus my indirect point. The OP indicated that somehow an AC comment means less (i.e. has no weight) when in reality, hardly anyone ever takes into account who said something, just what was said.

            The Maryland decision is a good one. It provides the courts the ability to weigh the comments themselves before deciding to revoke someone's anonymity. The 'warning' part doesn't really matter. The part that matters, to me, is the fact that before disclosure is required, the courts are actually looking at the claim rather than simply accepting on face value from the plaintiff that the statements are defamatory.

            • Re:wow... (Score:5, Insightful)

              by mrchaotica (681592) * on Monday March 02, 2009 @02:28PM (#27042613)

              The part that matters, to me, is the fact that before disclosure is required, the courts are actually looking at the claim rather than simply accepting on face value from the plaintiff that the statements are defamatory.

              But on the other hand, how can the claim be evaluated without the anonymous writer being there to defend it? I worry that this could turn into "pre-trying" the defendant before he's identified -- after all, if you've already decided that the statement is defamatory enough to identify the writer, then you're right on the edge of deciding that the writer is guilty, too. It would suck if the court improperly decided to identify the writer, and then he didn't get a fair trial due to the lingering presumption of guilt.

              (No, I don't have a solution for this.)

              • Re: (Score:3, Insightful)

                Or it could be more like a grand jury, where they decide whether the matter is even worth the court's time.
              • Re:wow... (Score:4, Insightful)

                by JoeMerchant (803320) on Monday March 02, 2009 @03:06PM (#27043091) Homepage

                The part that matters, to me, is the fact that before disclosure is required, the courts are actually looking at the claim rather than simply accepting on face value from the plaintiff that the statements are defamatory.

                But on the other hand, how can the claim be evaluated without the anonymous writer being there to defend it? I worry that this could turn into "pre-trying" the defendant before he's identified -- after all, if you've already decided that the statement is defamatory enough to identify the writer, then you're right on the edge of deciding that the writer is guilty, too. It would suck if the court improperly decided to identify the writer, and then he didn't get a fair trial due to the lingering presumption of guilt.

                (No, I don't have a solution for this.)

                Between the two choices: 1) drag the accused to court before making an initial determination, and 2) make the determination before identifying the accused, I can only get behind 2) as the preferable choice.

                As for the warning part, it should probably be more onerous to reduce frivolous claims. I'm in favor of the plaintiff posting bond to cover the defendant's time and legal costs in the event that the plaintiff does not prevail.

              • Missing the point? (Score:4, Insightful)

                by MadCow42 (243108) on Monday March 02, 2009 @03:12PM (#27043159) Homepage

                My bigger concern is the onus this might put on websites with regards to allowing anonymous posting... might they have to retain logs or force "anonymous" posters to log in with an account and provable credentials?

                What happens if a website simply says "sorry, they're anonymous... we don't know who they are and have no way of finding out."

                MadCow.

                • by Chyeld (713439) <chyeld&gmail,com> on Monday March 02, 2009 @03:18PM (#27043207)

                  Unless Maryland has a law indicating that you must keep logs, then nothing happens. But most sites do keep logs, not of who posted, but of what IP the post came from. They do so for various reasons, not excluding the ability to block an IP should they cross a line the site has drawn in the sand (i.e. abusivie, spammer, disagrees with the host, etc.)

              • Re:wow... (Score:4, Insightful)

                by Rary (566291) on Monday March 02, 2009 @03:24PM (#27043281)

                after all, if you've already decided that the statement is defamatory enough to identify the writer, then you're right on the edge of deciding that the writer is guilty, too.

                I'm not a lawyer or a judge, but it seems to me that courts work this way all the time. In criminal trials there is a probable cause hearing, where a judge decides whether the prosecution has a case worth taking to trial. Finding probable cause doesn't prejudice the case against the defendant — people do still get acquitted.

                This is similar to that situation. A judge decides whether there is enough of a case to sacrifice the defendant's anonymity and proceed with a trial, while recognizing that the defendant may still be innocent.

                Besides, even if the judge decides the defendant is probably guilty before the trial even begins, isn't it ultimately up to the jury to make that decision at trial?

              • Re: (Score:3, Interesting)

                by ftobin (48814) *
                The decision mentions that the "test" for being allowed to identify a poster that some places have applied is usually something close to the plaintiff needing to at last prove that he can survive a summary motion to dismiss. If you read the decision, they talk quite a bit about the approaches several different states have taken.
              • Re: (Score:3, Informative)

                But on the other hand, how can the claim be evaluated without the anonymous writer being there to defend it?

                If TFS is correct, the court gets to decide if the statements were obviously defamatory. As an example, if a doughnut shop complained that some anonymous poster said its doughnuts were greasy and its coffee tasted like wet cardboard, I doubt that the court would consider that anything other than expressing an opinion. If, OTOH, the poster claimed that the shop adulterated its coffee with organic f

            • This just encourages people writing critical opinions to post completely anonymously. What if the poster used a terminal in a library without logging in? Then there's no way to know who wrote the post. Even so, the poster can go through an anonymous proxy, which will make it much more difficult to trace.
            • Re:wow... (Score:4, Insightful)

              by i_ate_god (899684) on Monday March 02, 2009 @02:58PM (#27042963) Homepage

              What I don't like is that they say "the exact comment" of defamation. It doesn't seem to mention context anywhere.

              If someone says "I helped my uncle jack off the horse", it might look very rude, but if the conversation happens to be about the difficulties of dismounting horses, then it's clear that the phrase just missed some capitalization and no one should be arrested for bestiality. Context is always important and if the trolls see this message, then you'll see how they will quote me out of context, which in of itself, isn't defamation either since they are just making a joke based on this conversation, not and implying anything.

              • by Anonymous Coward on Monday March 02, 2009 @03:44PM (#27043539)

                Slashdot user i_ate_god bragged about his deviant prowess on slashdot: "I helped my uncle jack off the horse", he said in a Monday afternoon posting. He made it clear that he was making a political statement for what he views as an oppressed minority: "no one should be arrested for bestiality," he asserted.

            • Re: (Score:3, Interesting)

              by FiloEleven (602040)

              You and an AC have equal credibility, thus my indirect point. The OP indicated that somehow an AC comment means less (i.e. has no weight) when in reality, hardly anyone ever takes into account who said something, just what was said.

              Oh, I don't know about that. I can speak only for myself, but I certainly attach varying amounts of credibility to the different pseudonyms I recognize. I'm more likely to consider a viewpoint that I disagree with or haven't really thought about before if it is posted by someone on my friends list, for example, because they've said something else in the past that gained my respect. The opposite does not apply to my foes list. They get the same consideration an AC or someone I don't recognize, which mean

      • Re:wow... (Score:5, Insightful)

        by TubeSteak (669689) on Monday March 02, 2009 @01:35PM (#27041949) Journal

        No, it does not. An anonymous statement holds no weight and thus cannot be defamatory.

        If an anonymous statement holds no weight, then why is journalism filled with "anonymous sources say" and "unnamed government officials state"?
        Just because you don't give any weight to anonymous statements doesn't mean the rest of the world ignores them.

        Ultimately it is an issue of trust.
        Most people are willing to trust an anonymous statement if it is not extreme and seems to mesh with their pre-existing world view.

        • Re:wow... (Score:4, Insightful)

          by drinkypoo (153816) <martin.espinoza@gmail.com> on Monday March 02, 2009 @01:40PM (#27042023) Homepage Journal

          Most people are willing to trust an anonymous statement if it is not extreme and seems to mesh with their pre-existing world view.

          Many if not most are also willing to at least examine the potential veracity of an anonymous statement, especially if it comes with some sort of substantiating evidence.

          • Re:wow... (Score:5, Insightful)

            by ScentCone (795499) on Monday March 02, 2009 @02:20PM (#27042531)
            Many if not most are also willing to at least examine the potential veracity of an anonymous statement, especially if it comes with some sort of substantiating evidence

            I don't know if that's actually true - especially in the sort of context that's being discussed.

            Let's say you're on the road, and Googling for a couple of quick restaurant reviews in the town you're headed to, looking for a place to take your family for pizza before you drive on. Joe's Pizza comes up, looking swell. And Tony's Pizza is right there next to, complete with an anonymous "review" (by Joe!) that says Tony's Pizza is famous for kitchen staff that don't wash their hands, even though there have been several cases of hepatitis traced back to that restaurant.

            You're on your damn iPhone, trying to decide where to sit down for a pizza. Are you REALLY going to "examine the veracity" of what seems to be a local patron's take on a seedy restaurant... or are you just going to click the screen and have your iPhone tell you how to get to Joe's, instead of Tony's? What if only ten percent of people do that? Wouldn't you say that Tony has a case for finding out who's slandering him, and costing him business? Or do you propose an anonymous flame war as a way to level the playing field? Because all that does is raise the overall noise level, and achieve nothing. Someone who acts with malice in a public forum - and specifically tells lies about someone in a deliberate effort to harm them - has every reason to expect that a judge will help the target of that malice get to the bottom of it.
          • by TubeSteak (669689)

            Many if not most are also willing to at least examine the potential veracity of an anonymous statement, especially if it comes with some sort of substantiating evidence.

            The example which popped into my mind while I was writing that post is the allegation that George Bush said "Stop throwing the Constitution in my face. It's just a goddamned piece of paper!"

            It was "substantiated" by 3 anonymous sources, but very shortly turned out to be entirely made up. And yet to this day, people still believe it, because it fits with their perception of Bush & his Administration.

            To misquote Abraham Lincoln:
            You can fool some of the people all of the time, all of the people some of th

        • "... courts should first require the plaintiff to try to notify the anonymous posters that they are the subject of a subpoena. That notification could come in the form of a message posted to the online forum in question, and the posters must be given sufficient time to respond."

          The court does not understand what "anonymous" means in the context of online posting. It means, at least in some cases, "You will never know who did it."

          Before courts rule or Congress makes new laws, the proposed new ideas sho
          • Re: (Score:3, Informative)

            by srleffler (721400)
            If there is no hope of knowing who did it, then the question is moot. The issue here is that in many cases there is an entity that can identify the anonymous poster, such as an ISP or the operator of the website on which the comment was posted. The court has the power to compel that entity to reveal the anonymous poster's identity. This decision sets out rules for when it is appropriate for the court to do that.
        • Re: (Score:3, Informative)

          by amRadioHed (463061)

          Anonymous sources in journalism aren't supposed to be used frequently because they are unreliable. In the rare circumstance where they are appropriate it is the name of the journalist who wrote the article who gives credibility to the statements. A journalist who overuses anonymous statements will rightfully have little credibility.

          • Re: (Score:3, Interesting)

            by Tuoqui (1091447)

            Really... I always though 'Anonymous Source' was more along the lines of 'Source we know but arent willing to divulge'. Something like they'll give them the story in exchange for not attaching their name to it (and thus the potential consequences) despite legislation whistle blowers still do face retaliation from employers, government, etc...

        • If a statement is not 'extreme' and already meshes with the pre-existing world-view of a certain threshold of 'most people', there is a good chance that it is true, and if it is true it is not defamatory.

        • If an anonymous statement holds no weight, then why is journalism filled with "anonymous sources say"

          When a Journalist issues a statement from an anonymous source, you only give it credibility if the specific Journalist is credible to you. An online anonymous user shouldn't have the same credibility as an anonymous source quoted by Walter Cronkite.

        • by argent (18001)

          If an anonymous statement holds no weight, then why is journalism filled with "anonymous sources say" and "unnamed government officials state"?

          Because the journalist is giving the statements weight by repeating them.

        • by dcollins (135727)

          Just because you don't give any weight to anonymous statements doesn't mean the rest of the world ignores them.

          You've missed the sarcasm.

          Grandparent does not actually give zero weight to AC. It is great-grandparent who says he gives zero weight to AC, while posting AC. Hence the humor.

      • Re:wow... (Score:5, Interesting)

        by causality (777677) on Monday March 02, 2009 @01:35PM (#27041951)

        No, it does not. An anonymous statement holds no weight and thus cannot be defamatory. At least, not enough to rise to the level of court intervention. These types of cases should be thrown out (without wasting all this effort) and our government's resources put to better use. And Dunkin' Donuts needs to grow a pair.

        I agree. All this means is that anonymous posters need to start using Tor and other technologies because otherwise, they will find you if they want to do it badly enough.

        If it were up to me, the right to anonymous free speech would greatly outweigh the right to sue someone for libel. That would even mean eliminating the ability to sue an anonymous user for libel. I'd much rather people finally learn, once and for all, to never believe anything they see or hear or read without first confirming it themselves or testing whether it's consistent with what they already know to be true. I'd much much rather see that happen than try to use the courts to track down and sue every last false source of information. It's like a "default-allow" firewall versus a "default deny".

      • not really. if they can prove damages based on a statement made anonymously then the statement did hold weight. this case is garbage, but not all defamation cases are similarly baseless. also, this has nothing to do with the corporation, it was the franchisee that was suing.

        besides, you are posting anonymous, were modded up, and i am responding to you...so anonymous comments hold some weight
      • Re:wow... (Score:5, Informative)

        by UnknowingFool (672806) on Monday March 02, 2009 @01:52PM (#27042167)

        An anonymous statement holds no weight and thus cannot be defamatory.

        This specific ruling disagrees with you, page 17:

        The anonymity of speech, however, is not absolute and may be limited by defamation considerations. Beauharnais v. Illinois

        In this case, the court held that 3 of the defendants made no defamatory statements so their identities should not be revealed. The other 2 did make defamatory remarks but were not sued by the plaintiff before the statute of limitations ran out and thus should not identified.

      • Re: (Score:3, Funny)

        by interkin3tic (1469267)

        An anonymous statement holds no weight

        I've had my feelings hurt plenty of times by very mean anonymous cowards who for no good reason refuse to believe that the earth is flat. The joke will be on them though when they fall off the edge of the earth.

      • Re:wow... (Score:5, Insightful)

        by mattwarden (699984) on Monday March 02, 2009 @02:13PM (#27042463) Homepage

        How do they even determine that the anonymous posting is in their jurisdiction?

      • by dotmax (642602)

        And yet... your comment was modded up to +5 Insightful.

        Are you truly unaware of the broad and historic role of he anonymous whistleblower?

        Is it truly reasonable to think that only truthful anonymous comments have power? Let's take a look at any random 100 falsities in Snopes, although personally, i'd recommend we start with search=Obama, but i suppose we could try vaccination-->autism. etc. etc. etc.

      • by jgtg32a (1173373)
        Sounds nice but it doesn't hold true in journalism, Anon Sources are given credibility.
    • woooh there! This is slashdot, anything that impedes free-speech is Bad, no matter how reasonable, didn't you get the memo?

  • by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Monday March 02, 2009 @01:14PM (#27041641)

    The Maryland Supreme Court justices are all gay and have orgies after the last case of the day. I've seen them ship in goats and pigs to add spice to these events.

    It's true. They are all perverts and touch themselves in public.

    • by Anonymous Coward on Monday March 02, 2009 @01:19PM (#27041719)

      To whom it concerns

      We are giving you notice that you, BadAnalogyGuy, will be the subject of a subpoena. You have 14 days to respond.

      - Maryland Supreme Court

      P.S. And you're gayer.

      • by Hordeking (1237940) on Monday March 02, 2009 @01:35PM (#27041953)

        To whom it concerns

        We are giving you notice that you, BadAnalogyGuy, will be the subject of a subpoena. You have 14 days to respond.

        - Maryland Supreme Court

        P.S. And you're gayer.

        On second thought, maybe he should've posted AC.

      • Oooh oooh I know what you do now- highlight the post and hit Ctrl-C and send it to

        Maryland Court of Appeals
        Judge Adkins, J., Judge Robert C. Murphy, Judge Barbera JJ
        Courts of Appeal Building
        361 Rowe Boulevard
        Annapolis, MD 21401

        to determine if the post is -1, Obviously Defamatory.

    • by RingDev (879105) on Monday March 02, 2009 @01:30PM (#27041889) Homepage Journal

      Insults are usually not considered defamation. The more outrageous the insult, the less likely it is for anyone to believe it to be true, and the less likely it is to actually cause damages to the offended party. Purely by posting anonymously, you are greatly reducing your credibility, which means the other party is going to have to show some pretty clear evidence that your writings were the ones that people believed.

      Now, if you happened to be a clerk working for the MD Supreme Court and you were in a position to say such things as fact instead of just wild accusations, then you might be liable for defamation/libel.

      -Rick

      • Right, the lawyers around here will clarify, but there is a principle in law that if the lie is big enough, you aren't liable. Thus, a hamburger shop can say that it has the "Best" burgers and it doesn't have to prove it.
        • Re: (Score:3, Informative)

          by mrchaotica (681592) *

          Thus, a hamburger shop can say that it has the "Best" burgers and it doesn't have to prove it.

          That's not a lie, that's an opinion. In order to be a lie, a statement must first be a statement of fact.

          If, instead, the hamburger shop claimed "[some entity] said we have the best burgers," then they would have to be able to prove it.

        • Re:The Big Lie (Score:4, Interesting)

          by hawk (1151) <hawk@eyry.org> on Monday March 02, 2009 @03:04PM (#27043061) Journal

          I'm a lawyer; this isn't advice; blah, blah, blah . . .

          In advertising, the legal term is "puffing."

          "Our hamburger is best" is puffing; "Our hamburger has less than 5% fat and comes from virgin cows." had better be true if claimed, and "They spit on their burgers before serving." is defamatory (and actionable unless true).

          If a statement is clearly not intended to be taken as a literal truth, it's not going to meet the standards for defamation--although parts of it still might: "He molests every intern to come through D.C., just like he did to Jesse." The claim about Jesse is actionable, while the bigger one isn't.

          (Hmm, maybe if you're talking about Bill Clinton, the "every" might be believable :)

          hawk, esq.

  • Not anonymous (Score:5, Interesting)

    by wjh31 (1372867) on Monday March 02, 2009 @01:21PM (#27041761) Homepage
    If its possible to hand over details of who posted an anonymous message, then it wasnt 100% anonymous, there must be some sites that dont log any details of anonymous posters, so cant hand anything over
  • 4chan is royally eff'd, eh?
  • by paranoid.android (71379) on Monday March 02, 2009 @01:23PM (#27041785)

    It seems that these First Amendment cases are always about the most trivial and petty things possible. I fully expect the next one to revolve around whether or not yo momma is so fat, and how fat she is.

    • Seriously though, Yo mamma is HUGE! And this is Maryland we're talking about a state that looks up to New Jersey in terms of class and sophistication.

    • And I'm also left wondering, what is the lawsuit going to accomplish? I say your donut shop is dirty, and either people believe it or not. Now are the people who believed it going to reconsider because they've heard on the news that a court determined they weren't dirty? Or now what if they lose the case-- should we assume that they really are dirty?

      Or is this just to try to wring some money out of some random person who posted on a forum that they thought the place was dirty? They're probably spend te

      • Well, it's difficult to say for certain, but I'd say it's a three pronged approach.

        1. It gets them national news exposure AKA free advertising
        2. It limits free speech
        3. They can still sue the parents of the 12 year old, who may actually have some cash

        Or is this just to try to wring some money out of some random person who posted on a forum that they thought the place was dirty? They're probably spend tens of thousands of dollars to discover it was a 12 year old who has no money.

      • by kabloom (755503) on Monday March 02, 2009 @01:53PM (#27042189) Homepage

        Because if the anonymous posters are a competitor (or paid shills for a competitor) then it may make sense to sue them, while if they're actual customers it probably doesn't. I would hope that the court realizes the importance of following up after the identities of the posters are revealed to determine whether there's a sensible issue once the identities are known.

        And you'll note that the appeals court didn't use this standard to say anonymous comments about a dirty Donut shop are worthy of a lawsuit, they used it to say that it's really not worthy of a lawsuit, so yes the court made a sensible decision here. They had to articulate a standard so they could use the standard.

        • I wasn't criticizing the court so much as questioning the judgement of the donut shop. I guess if they really have valid reasons to believe that it's a competitor who is engaging in an organized campaign to harm the public image, it seems reasonable to try to fight back. Otherwise, it seems like an overreaction.

    • by oodaloop (1229816)
      Yo momma so stupid she got modded to -6.
    • by Hatta (162192) on Monday March 02, 2009 @01:54PM (#27042195) Journal

      This is because of the erosion of our rights. There was a time when first amendment lawsuits involved people like Larry Flynt, saying things like "If the first amendment will protect a scumbag like me, then it will protect all of you, because I'm the worst." These days, the cases that set precedent tend not to involve the worst scumbags, but normal people. Today you can easily see that if there's any question that the constitution will protect us in trivial and petty cases, there's NO chance it will protect us when it's important.

    • It seems that these First Amendment cases are always about the most trivial and petty things possible.

      You don't run a doughnut store, do you?

      Anyway, yo momma's so fat, she has diabetes.

    • by dr_dank (472072)

      I fully expect the next one to revolve around whether or not yo momma is so fat, and how fat she is.

      There is legal precedent for this. Refer to No you didn't! Vs Oh Snap!

    • Re: (Score:3, Interesting)

      by fermion (181285)
      I think it has to do with respect for the individual and customer service. The company does not respect the individuals it serves because the sole job is to keep profits rising no matter what, and one customer can be replaced with another. The company does not respect the employees as individuals because they are just cost centers that reduce profits. The customers do not respect the employees hey are just dumbasses that do have to work at some lame job because they can't get any better. The employees d
  • by grandpa-geek (981017) on Monday March 02, 2009 @01:25PM (#27041803)

    ... it is "the" Maryland Court of Appeals. In other states it would be known as the state supreme court.

    A similar situation is that what other states call the "state house of representatives" in Maryland is called the House of Delegates. (Virginia calls its lower house that also.)

    • by tsstahl (812393)
      Just to pick a nit, Virginia is a commonwealth.
      • If it weren't a state, it wouldn't be able to seat Senators, for example, since the U.S. Constitution says there are "two Senators from each state", and does not apportion any to Commonwealths.

      • I've heard this, but the US Constitution doesn't allow commonwealths, and under the Ratification clause, it says:

        Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names.

        Go. Washington is listed as the "President and deputy from Virginia". Since old George considered Virginia a state, I pretty sure we're safe in calling VA a state.

        • by tsstahl (812393)
          And yet they still call themselves a commonwealth [virginia.gov]. As do several other states. Go figure.
        • by hawk (1151)

          Virginia is a state.
          Texas is a state.
          Mexico is a state.[1]
          England is a State.
          Monaco is a State.
          Vatican City is a state.

          The English state is a constitutional monarchy, the mexican state is a representative republic, and the Vatican is a theocracy.

          the state of Virginia is a Commonwealth, the states of California and Texas are republics, and forty some-odd of the states comprising the USA don't make such specifications and simply use "state."

          hawk

          [1]yes, it calls its political subdivisions states, but they were

  • by Foofoobar (318279) on Monday March 02, 2009 @01:26PM (#27041821)
    Lets face it... corporations ARE going to hammer this until they get their way. At least a court is coming up with some sort of fair way to arbitrate and say 'let the courts decide what is libelous before handing over identities'. That seems more than fair and it gives the anonymous user the opportunity to seek counsel should they feel the need.

    It's a libelous world but at least the courts are trying to err on the side of caution.
  • ... I've slipped into a parallel universe again. Courts making sensible decisions! Next you'll tell me a funny joke about chickens crossing the road or maybe even find a /. meme that hasn't been done to death.

    I wouldn't worry too much there is ample scope for this common sense to be screwed up by other courts and rulings.

  • What is defamation? (Score:4, Interesting)

    by homer_s (799572) on Monday March 02, 2009 @01:35PM (#27041945)
    If I truly believe that that restaurant is dirty, is it defamation?
    I think not. How would anyone know what my standards for cleanliness are and whether I truly believed what I said (or typed in this case)?

    Maybe my standards are really high and I saw a piece of paper on the floor and concluded that the restaurant is dirty. Or maybe I wanted to destroy the business and am using the piece of paper as an excuse.
    • That would depend on what you said specifically. There's a difference between saying "This place is dirty to me" and "There's cockroaches crawling out everywhere." One is a statement of opinion and the other is a provable fact.

      You can be sued for the latter but just because you can be sued only doesn't mean a court would find you guilty. Defamation involves a false claim. If there were actually roaches everywhere, you'd win as your statement was true.

    • by blueg3 (192743)

      Defamation generally requires a false, factual claim that causes damage -- not simply an opinion that some might find true and some might not. (Certainly an opinion that some might hold true is unlikely to get anywhere in a defamation case.)

      • by hawk (1151) <hawk@eyry.org> on Monday March 02, 2009 @02:56PM (#27042933) Journal

        I am an attorney, but this is not legal advice.
        Pay for that if you need it.

        Truth has nothing to do with whether or not a statement is defamatory, just whether or not it is actionable.

        "Bill Clinton is an adulterer." is a defamatory statement; it causes a significant portion of the population to think less of him. It happens to be true, which in the US is a perfect defense to a slander or libel action (In Britain, the falsity is part of the Plaintiff's case, rather than a defense).

        hawk, esq.

  • Amazing (Score:5, Insightful)

    by GTarrant (726871) on Monday March 02, 2009 @01:37PM (#27041971)
    The issue I have here is that it seems like the fact that this is just opinion is no longer relevant - the poster went there, didn't like it, and posted so, and suddenly it's defamatory. What if that was their actual opinion of what happened? Why would someone make that up?

    It feels like everything even a tiny bit negative is suddenly grounds for a lawsuit.

    Food critic gives a bad review? Don't make better food, sue the critic, the newspaper, and the corporation that owns it for defamation, even if the fries WERE soggy that day.

    It seems like the issue is it's way cheaper to try and suppress negative information (even if it's simply random people's opinions) - and furthermore make it clear that it will be extremely costly to even utter such information, by way of having to defend oneself in court, even for pure opinion-laced statements. Some states, if I recall, have laws and remedies available when companies sue under such circumstances, but many, it seems, do not.

    And hell - I've noticed that in some countries, forget opinion - it's getting to the point where even truth is no longer an absolute defense to libel, because truthful statements can still be "defamatory".

    "Fame" and "Respect" shouldn't be a right just via the existence of a person or company, it's one of those things that is (or used to be) hard to earn, and easy to lose. What's the point of having a review or sharing thoughts if any negative one leads to a lawsuit?

    • Re:Amazing (Score:4, Insightful)

      by Reziac (43301) * on Monday March 02, 2009 @01:55PM (#27042213) Homepage Journal

      Totally agree with everything you said. Anymore you can't just speak your mind; you've got to edit everything you think lest you offend SOMEONE. In that way, it's a form of thought control -- Thou Shalt Not Express Bad Thoughts, Especially About Those In Power. What you can't express, you tend not to think anymore either.

      We have a whole generation that has been taught they have a right to be respected without earning it, and to have "self esteem" without having to grow it themselves. Is it any wonder that businesses are following in these same footsteps??

    • by argent (18001)

      I've noticed that in some countries, forget opinion - it's getting to the point where even truth is no longer an absolute defense to libel, because truthful statements can still be "defamatory".

      In many countries truth has never been a defense.

    • by blueg3 (192743)

      This is the general slant here -- the defense, at least, asserts that the purpose of the suit is solely to identify who the posters are; they have no intention of actually winning. (Given the nature of the comments, I'd have to agree -- there's no way they constitute defamation.)

    • This reminds me of this insane law in Germany which prevents an employer from writing anything bad in a reference letter. The end result is there's a separate language used in reference letters. For example, they might write that the employee was a "good" performer. But "good" in this case actually means really bad. They would write something more elaborate to describe good performance, like: "exemplary performance and is extremely proficient at his job".
    • The food critic and newspaper are not anonymous, so this ruling doesn't even apply there. Of course they can get sued - everybody can get sued for anything, but that doesn't mean they would loose!

      All that is done here is that for certain types of posts which a court finds libelous, the authors of the post have to be disclosed (if they are known by the host of the online service). This does NOT mean they will get convicted of libel, but it does mean that they have to defend themselves in court, and possibly

  • Bad plan, darlings. (Score:5, Interesting)

    by girlintraining (1395911) on Monday March 02, 2009 @01:37PM (#27041979)

    Here's the problems. First, there's this idea that people who excercise their fifth amendment rights are guilty. Then there's this idea that anonymous speakers are "evil". Nevermind arguments about the 4th amendment, or about privacy and other things -- this all points to a systemic and popular change of opinion in the general public that excercising one's rights is synonymous with abusing them. This is very dangerous -- those rights were enacted to precisely and explicitly to protect innocent people who might otherwise be snared by ambiguous testimony, false witnesses, or procedural mistakes (amongst other flaws in the justice system that hang innocent people).

    But that aside, the crux of the matter is, should anonymous speech be entitled the same protections as non-anonymous speech? If you're tempted to answer yes, consider that an "anonymous poster" stating that a pharmaceutical company is engaging in price fixing doesn't carry the same weight as a former accountant of the company in question stating it. Who you are does indeed matter when it comes to credibility. Just a talking point here. Here's the other problem -- people often post anonymously precisely because they have more to lose because of who they are, yet wish to perform a public service by drawing attention to a problem. Anyone remember F*ckedCompany during the dotcom bubble burst? The court fails to address these questions.

    And the argument could be made they should not address them. Our court system is based on the concept that everything should be public, unless of course it has anything to do with terrorism, the government, or some government official's nuts in the vice, in which case it's Uber-Super-Double-Top-Secret. This is a problem for people found not guilty because public mentality is that even an accusation means you did something wrong. People's lives are ruined daily by false accusation, false witnesses, etc., because the system declares that everything should be public -- not just those found guilty, but also those found not guilty, or even innocent!

    And in a digital age, I don't know that we can afford this anymore. The needs of the many (the public's need to know) is NOT outweighed by the individuals needs (for privacy) any longer, and a foundational aspect of our justice system now needs reform. Specifically, court actions should not be made public until the case is finalized and no longer appealable. Yes, that does mean the public gets less information. In my opinion... Deal with it. If this dynamic were the case, then the collateral damage in involving legal action against anonymous posters would be reduced a hundred-fold. Doing this eliminates the "chilling effect" that these actions provide.

    • by drinkypoo (153816) <martin.espinoza@gmail.com> on Monday March 02, 2009 @01:44PM (#27042067) Homepage Journal

      And in a digital age, I don't know that we can afford this anymore.

      What does a digital age have to do with anything? As time has gone by our ability to communicate has always improved and yet civilization has so far continued marching along. The cops and crooks are in a constant state of cold war (with occasional outbreaks of heat... although in someplaces that is the status quo) and they proceed more or less in lock step. Not to mention that plenty of the cops are crooks.

      In any age, we cannot afford to place restrictions on anonymous speech. When anonymity is criminal, only criminals will be anonymous. On the contrary, the proper approach to anonymous speech is to give it the consideration which it deserves.

      • What does a digital age have to do with anything? As time has gone by our ability to communicate has always improved and yet civilization has so far continued marching along.

        In short, everything.

        For everything that anyone has ever said about you that has been created, translated, transported, or in some way has gone through a digital process,it is very likely now accessible in milliseconds from anywhere, world-wide, largely anonymously. Whereas before, people had to make a phone call, or sign a form, or do something else that took a measurable amount of time and energy, now they can find answers in seconds, no questions asked and no person to shy away from. You wouldn't think o

    • by Jane Q. Public (1010737) on Monday March 02, 2009 @01:53PM (#27042187)
      Actually, according to the courts (I do not have a citation handy, but you should be able to look it up), anonymous speech is particularly protected, because anonymous speech is essential to honest political debate.

      Imagine that if you spoke your political mind publicly that your neighbors or your boss, who had different political opinions, decided to punish you for what you said? It has certainly been known to happen. The Federalist Papers, and other important documents that led to the formation of our Constitution, were published publicly but anonymously. Why? Precisely because the authors feared serious repercussions should their names be attached to the documents.

      If anonymous speech were not protected, then the concept of "freedom of speech" would be a joke. It is essential that people be able to speak their minds, without being harassed or injured or jailed for their opinions. Remember, however, that opinion and libel are two different things.
      • Re: (Score:3, Insightful)

        by Reziac (43301) *

        Absolutely. Anonymous speech is critical to a free nation, for all the reasons you state.

        And as I say above -- when you don't dare express your opinion, that becomes a form of thought control, since there's a natural tendency to avoid thoughts that lead to Unpleasantness (such as being sued or arrested for every negative opinion).

        Anonymous accusation is another matter. In some areas of local law (anything to do with child or animal welfare), anonymous complaints are taken as solid evidence, and you have no

    • Here's the problems. First, there's this idea that people who excercise their fifth amendment rights are guilty.

      When you confuse the First and Fifth amendments - your case is weakened greatly, and the quality of your thought and logic is called into question.

      This is a problem for people found not guilty because public mentality is that even an accusation means you did something wrong.

      People are found not guilty because a judge or jury finds them so - the court of public opinion is meaningles

  • All this over a rat nibbling a couple chocolate eclairs. Rat droppings just look like sprinkles. It's nothing to get upset about.
  • Maryland v. X (Score:5, Interesting)

    by dhermann (648219) on Monday March 02, 2009 @01:50PM (#27042155)
    In the case of the Emily Vance versus the Bathroom Wall Writer of the Baltimore Golden Corral, Men's Room, 2nd Stall, sometime between 6:30 PM on January 25th 2009 and 10:45 PM on January 27th 2009, the Court finds that Emily Vance, with whom the Bathroom Writer suggested a short-term relationship might result in a pleasant outcome, did effectively write on said wall in reply, letting the Bathroom Writer know he or she was the subject of a subpoena. The Bathroom Writer, who knowingly and wantonly failed to respond, is hereby subject to the default judgement of $840,000. The next time the Bathroom Writer writes on that wall, Ms. Vance should let him or her know that he or she is liable.
  • The way things are going, it will (already is?) be illegal to even try and be anonymous.

    Eventually, if THEY really want to get you, it will not be for what you said, but for the fact that you probably lied to get set up an "anonymous" account, thus violating some TOS. Any attempt to be AC probably took planning, which (in their mind), is the willful committing of conspiracy, with intent, etc. Toss in unauthorized access of computers, etc. etc. you just get in deeper and deeper.

    You will have a list of
  • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    I don't see the word anonymous anywhere in there. I don't see anything close to the concept of anonymity there.

    • by D Ninja (825055)

      It says, "Congress shall make no law [which prohibits or abridges] the freedom of speech..."

      Anonymity isn't really the important part here (no...seriously). It's, "What are you allowed to say?"

      An anonymous post is still someone exercising their freedom of speech. Arguably, laws shouldn't exist regarding libel either (although I can see their purpose).

  • by gatkinso (15975) on Monday March 02, 2009 @03:08PM (#27043107)

    Sounds like a Klingon name to me.

    No way would a trust a Klingon to make my donuts.

  • Kudos to INI (Score:3, Informative)

    What I find encouraging is that INI fought for the constitutional rights of its readers. Too many internet companies these days take a neutral position... i.e. cave.

Man must shape his tools lest they shape him. -- Arthur R. Miller

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