The Maryland Court of Appeals has reversed a lower-court ruling that a website must reveal the names of anonymous posters during a defamation hearing, and has issued guidelines for how such requests should be made in the future.
The court ruling laid out the following steps in its decision:
The plaintiff has to try to notify the anonymous posters that they are the subject of a subpoena, including posting on the message board
give them a chance to respond, including legal filing
identify and set forth the exact statements purportedly made by each anonymous poster
determine whether it's defamation on its face or requires other evidence
After all that, the court can still decide that the anonymous posters' First Amendment rights of free speech can override the plaintiff's charge of defamation.
While this only covers Maryland, and isn't considered a legal precedent for anywhere else, it's certainly an indication of which way courts are leaning -- indicating that the Texas court order requiring another website to turn over the names of 178 anonymous posters might be overturned on appeal as well.
It is also similar to a process laid out by a New Jersey court in 2002, reported the Washington Post, indicating that some consensus is developing.
The case involved NewsZap.com, an online forum run by Independent Newspapers Inc., which hosted a 2006 online exchange about the cleanliness of a Dunkin' Donuts shop in Centreville, Md., according to the Wall Street Journal.
The company's attorney argued that disclosing the names would have a "chilling effect'' on the First Amendment right to speak anonymously. Zebulon Brodie, the owner of the Dunkin' Donuts shop in question, argued that freedom of speech doesn't extend to defamation, the Journal said.
The three anonymous posters were represented by Paul Allen Levy, an attorney for Public Citizen, a national, nonprofit consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive branch and the courts.
There are advantages and disadvantages to the decision. First Amendment, yay! And it's good to have at least a first stab at guidelines for how to handle such cases in the future. It does suggest, however, that anonymous posters could have more freedom in the future, and it might be harder to protect oneself against anonymous attacks -- leading, it is to be hoped, to stricter guidelines in websites about what sort of posts are acceptable.