MD Appellate Ct. Sets "New Standard" For Anonymous Posting 260
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."
Not anonymous (Score:5, Interesting)
What is defamation? (Score:4, Interesting)
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.
Re:wow... (Score:5, Interesting)
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".
Something sublte in the article.. (Score:1, Interesting)
The appeals court decided Brodie was not entitled to learn the identities of the posters because in his complaint he misidentified the forum participants responsible for the critical comments.
How did he misidentify them? Did he guess as to who they were, and guess wrong?
The PDF file itself states:
The Court reviewed the record and determined that Brodie had not identified the appropriate forum participants in his complaint. Because Brodie failed to assert his defamation action against the correct individuals, the Court reversed the trial judgeâ(TM)s order compelling the discovery of the forum participantsâ(TM) identities.
How is it relevant that he misidentified them initially? Or is it simply that identifying someone by a user name is considered misidentification?
I would not want there to be a loophole in this ruling that would make it not apply in other cases.
Bad plan, darlings. (Score:5, Interesting)
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.
Maryland v. X (Score:5, Interesting)
Re:Cleanliness of a donut shop? Really? (Score:4, Interesting)
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.
Re:wow... (Score:0, Interesting)
Slashdot math time!
One person wholly theoretically wanting to safely post about his government/business/whatever and has a legitimate reason to require anonymity is far, far greater than the thousands of administrators having to clean up the mess left by the tens of thousands of asshats per one person on the other side of the equation abusing the anonymity system, plus the inability to block them without blocking the entire anonymity network*, plus the users harassed by the asshats, plus the bandwidth and processing power wasted by the asshats, plus the asshats using said anonymity to issue cyberattacks.
Sure, there's something to be said about altruism and sticking up for the guy who's got it tough and all, but there's a point where you're letting people destroy the city so one guy can use the toilet in peace.
*: But OBVIOUSLY we shouldn't be allowed to block the entire network, because one geek sitting in his basement HAS to be anonymous, else They(tm) are gonna get him, and we can't have THAT, can we?
Re:Cleanliness of a donut shop? Really? (Score:3, Interesting)
So in this light, we cannot have a civilized discourse. A rumor get around that a place is tainted, and all the customers go elsewhere. The employees are not going to go to the defense. The company has not put enough into training and paying employees to make customer feel particularly welcome and valuable. The customer has been trained to go where ever the food is cheap.
The only recourse is to make the individual so weak and unimportant that one no longer has the right to speak ones own mind, even if the statements are false. I mean, it like Limbaugh, who has probably never spoken an honest word in his entire life. But he has the right to speak it, and if people are so fucked up to pay for it, he has the right to speak in on the public air waves(although he would have more a defense for being so beligerant if he were using private bandwidth like Stern). If we were a civil society, it would not matter. The only problem is that we are so wrapped up in our own problems that we cannot have compassion for any one else.
Re:The Big Lie (Score:4, Interesting)
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.
Re:Missing the point? (Score:5, Interesting)
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:1, Interesting)
Ok, how about this,
I've been keeping a track for the last three months, my avg connection speed tests between 3 and 6 Mbps, I'm paying for 15, with "burst 22 Mbps", and conveniently even with those speeds, Netflix tells me I lack the bandwidth to play this movie, and hulu is all but blocked. Even when I'm testing in the 3/6 range.
Now say I start a blog and post my testing's and findings, complete with screenshots, logs, and documentation of my connection. Including accurate play by play's of phone calls, and service calls to my home.
What does Time-Warner Cable do?
A.) Rather than fix the problem, they pay their lawyers to come after me, because I used my own name. (Their pick)
Or
B.) Can do nothing, because they don't know who Anonymous Coward is, and are forced to either deal with the problem or suffer from their earned reputation.
Re:wow... (Score:3, Interesting)
Re:wow... (Score:3, Interesting)
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 means I will generally read the comment if it is highly rated.
In other words, if I don't recognize you, then yes, you have credibility equal to an anonymous poster, but if I recognize you as someone who has shown wisdom or wit in the past, you get a credibility boost. This isn't so much a contradiction of your point as an extension of it and has no bearing on your conclusion about the Maryland decision, with which I agree fully.
Re:wow... (Score:3, Interesting)
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...