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Court Addresses Tension between Defamation Victim’s Rights and First Amendment Protection of Anonymous Internet Speech, Provides Guidance on How to Proceed

Posted in CASE SUMMARIES

Indep. Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009)

Finding plaintiff/appellee failed to show a valid cause of action for defamation, the appellate court vacated an order requiring appellant to identify the alleged anonymous defamers and remanded the case for entry of an order granting appellant’s motion to quash.

In this defamation case, plaintiff/appellee Brodie sought to enforce a subpoena to compel the production of the identities of several persons who posted allegedly defamatory statements about the plaintiff, anonymously, on defendant/appellant Independent Newspaper’s (“Independent”) Internet forum.  The circuit court granted Brodie’s motion and ordered Independent to identify the anonymous forum participants.  Independent appealed.  Finding that the circuit court abused its discretion when it denied Independent’s motion for a protective order because “Brodie had not pleaded a valid defamation claim against any of [the anonymous forum participants],” the appellate court vacated the prior judgment and remanded the case with instructions to grant defendant’s motion for a protective order and quash the subpoena. 

On May 26, 2006, Brodie filed a complaint against Independent and three anonymous persons alleging “defamation and conspiracy to defame.”  The comments at issue were posted on Independent’s Internet forum by anonymous persons identified only by their chosen pseudonyms.  Thereafter, Brodie served Independent with a subpoena seeking the identities of the anonymous forum participants responsible for the allegedly defamatory posts.  In response to the allegations and the subpoena, Independent filed several motions, including a motion for a protective order to prevent being compelled to identify the anonymous forum participants.  Independent argued that “both as a discovery matter, and as a matter involving the First Amendment, … Brodie should be required to make a legal and evidentiary showing that he had a valid cause of action” before being permitted discovery of the participants’ identities.  The circuit court disagreed and ordered compliance with the subpoena. (Pursuant to a separate motion, Independent was also dismissed from the case.)

Upon reconsideration, the circuit court agreed to dismiss the causes of action premised on statements referring to persons other than Brodie, but refused to reconsider its order to disclose the identity of the persons responsible for the comments regarding Brodie and his food establishment posted on Independent’s forum.

Subsequently, Independent sought identification of the specific posts alleged to be defamatory and Brodie’s counsel revealed that the two posts remaining at issue were attributed to pseudonyms not named in Brodie’s complaint.  Thereafter, Brodie served another subpoena seeking the identities of those additional forum participants.  Independent filed a motion to quash and for a protective order.  The motion was denied and Independent was ordered to comply with the subpoena.  Independent appealed.

The appellate court first addressed, in some detail, the tension between the development of “communication opportunities” on the Internet and defamation law.  Specifically, the court discussed the difficulty of tracing individuals who are not required to provide accurate information about themselves, or any information at all, before utilizing various communication options on the web, i.e. email, chat rooms, news forums, etc. as well as the historical protection provided by the First Amendment for anonymous speech and the extension of that protection to the Internet.

Turning to the facts of the case before it, the appellate court ruled that the circuit court had abused its discretion in denying Independent’s motion for a protective order because “…Brodie had not pleaded a valid defamation claim against any of [the alleged anonymous defamers].”  In support of this determination, the appellate court pointed first to the circuit court’s proper dismissal of the causes of action based on comments about someone other than Brodie which destroyed any valid defamation claim against the persons responsible for those posts.  Because the remaining posts were authored by persons not named in Brodie’s complaint, Brodie did not have a valid cause of action for defamation against them, either.  Thus, according to the appellate court, Independent’s motion to quash/motion for a protective order should have been granted.

Having settled the question relatively quickly, the appellate court indicated its intent to take the opportunity to “provide guidance to the trial courts in defamation actions, when the disclosure of the identity of an anonymous Internet communicant is sought.”  The court then engaged in a detailed discussion of how the tension created between the First Amendment rights of Internet users and the alleged victims of defamation had been addressed by other jurisdictions.  For example, a Delaware state court determined that “…before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.”  Alternatively, a New Jersey court determined that “a plaintiff who seeks the identification of anonymous posters in a defamation action must establish facts sufficient to maintain a prima facie case…” and that posters must receive notice and an opportunity to be heard.  The court also held that a judge must engage in a balancing test, balancing “the defendant’s First Amendment right of anonymous speech against the strength of the prima facie case presented and the necessity for the disclosure…to allow the plaintiff to properly proceed.”

At the end of its analysis, the appellate court concluded that “a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test…most appropriately balances a speaker’s constitutional right to anonymous Internet speech with a plaintiff’s right to seek judicial redress from defamatory remarks.”

Accordingly, the court laid out the following guideline for courts “confronted with a defamatory action in which anonymous speakers or pseudonyms are involved:”

(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (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 and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.