Unmasking the identities of online commenters

From the Fall 2009 issue of The News Media & The Law, page 11.

The Las Vegas Review-Journal balked when it was subpoenaed last summer to reveal the identities of more than 100 anonymous commenters who were discussing a tax-evasion trial on its Web site.

After the newspaper published a scathing editorial and hired an attorney, government prosecutors backpedaled and issued a revised subpoena that focused on the identities of only two commenters — and the newspaper complied.

“The R-J did make a stink about the first subpoena and brought public attention to the issue … a lot of people don’t want to face contempt and just hand the information over,” said Maggie McLetchie, an attorney with Nevada’s American Civil Liberties Union, who argued on behalf of the two commenters.

Whether media outlets should reveal the identities of individuals who comment on online stories — and whether courts can compel them to do so — is the subject of both newsroom and courtroom debate.

Many publications, like the Review-Journal, have resisted subpoenas seeking the identities of commenters and there is an increasing body of law to support their efforts as courts have interpreted state laws on confidential newsgathering materials to include anonymous Internet commenters.

Last summer, a court in Texas refused to unmask anonymous commenters on the Abilene Reporter-News Web site. The comments concerned coverage of an ongoing murder case and the defense had subpoenaed the paper to make sure none of the posters wound up on the jury.

Ken Leggett, the paper’s attorney, argued at the hearing that the identity was privileged information under the Texas shield law, which took effect in May, and the judge determined that careful questioning during jury selection could address defense attorneys’ concerns without intruding unnecessarily into the paper’s rights.

On the other hand, some publications decide in extreme circumstances to comply with subpoenas. The Knoxville News Sentinel in late October turned over information about one user comment in response to a federal grand jury subpoena. The FBI sought the information during an investigation into alleged death threats against the attorneys defending the primary suspect in a local carjacking and double murder.

“We’re operating under the rules as we understand them, and that would be that the comments are the responsibility of the commenter,” said Jack Lail, the paper’s director of news innovation. “If they had asked for the notes of the reporter or something involved with the reporters, that would be different.”

Indeed, some say anonymous commenters should be treated differently than confidential sources because it could undermine efforts to safeguard confidential newsgathering materials.

Washington & Lee University journalism professor Edward Wasserman has argued that if an anonymous commenter writes a potentially defamatory comment, the paper should not fight a subpoena to protect that person because it is not the type of newsgathering material covered by the First Amendment and state shield laws. The thrust of Wasserman’s contentions are that extending the law to shield anonymous posters could jeopardize press privileges generally.

“As a political reality, it’s a surefire way to guarantee the demise of source protections,” Wasserman wrote in a Sept. 28 Miami Herald column about The Wausau Daily Herald’s decision to reveal the identities of commenters on its site who were posting disparaging comments about a town administrator. The paper’s owner later apologized for revealing the identities of the posters.

The ACLU’s McLetchie said the intrusion on papers’ First Amendment rights is reason enough for them to object to court-compelled disclosure.

Different legal standards have been set as state courts wrestle with whether anonymous commenters should be unmasked in lawsuits. In New Jersey and Delaware, courts have deferred to the right to anonymous speech in the First Amendment and required the plaintiff to present a basic case of defamation before the identity can even be revealed.

Others, such as those in Virginia, have set a lower bar for plaintiffs, and revealed the identities of anonymous commenters as long as the plaintiff believes in good faith that believe he or she has been a victim of defamation.

Earlier this year, the Maryland high court adopted a stringent standard before requiring speakers to be unmasked, in a case involving a prominent businessman’s suit against a newspaper company over comments criticizing his local businesses.

The Maryland Court of Appeals largely borrowed the standard from a New Jersey case about anonymous commenters that was decided in 2001, Dendrite International v. Doe No. 3.

In that case, Dendrite, a software company, sought a court order to compel Yahoo! to reveal the identities of 14 message-board posters they claimed had defamed their company. Eventually, the court allowed some discovery regarding two of the anonymous defendants who had been former employees of Dendrite, but blocked discovery on a third.

The court established a five-part test for courts to follow, allowing disclosure if (1) the plaintiff makes efforts to notify the anonymous poster and allow a reasonable time for him or her to respond; (2) the plaintiff identifies the exact statements made by the poster; (3) the complaint sets forth a basic cause of action; (4) the plaintiff presents enough evidence for each element of the claim; and (5) the court must balance the defendant’s First Amendment right of anonymous free speech against the plaintiff’s need for disclosure and the strength of the plaintiff’s case.

An appeals court in the District of Columbia determined its own standard this summer when in Solers, Inc. v. John Doe. The District of Columbia test, which was a bit more plaintiff-friendly than the one in Dendrite, requires a plaintiff to make a reasonable effort to notify the anonymous person of a complaint or subpoena; allow a reasonable response time for that person; present evidence regarding the claim that is within its control and the court must determine that the information is important to allow the plaintiff’s suit to continue.

However, the court indicated that the standard might be different for a media defendant — the entity subpoenaed in Solers was the Software & Information Industry Association, which had received anonymous messages that alleged Solers, Inc. had committed copyright violations.

“We are not dealing here with a subpoena seeking to compel a non-party journalist to reveal confidential sources,” wrote Judge John R. Fisher in a footnote to the opinion. “Additional First Amendment interests are involved in such cases, and it may be appropriate there to require the exhaustion of alternative sources.”

The opinion, reflecting the novel issue’s murkiness, did not make it clear whether the D.C. courts would treat an anonymous commenter as a confidential source.