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Court ignores trend on anonymous comments

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  1. Libel and Privacy
An Illinois newspaper must disclose the identity of an anonymous reader who posted allegedly defamatory comments on its website, a…

An Illinois newspaper must disclose the identity of an anonymous reader who posted allegedly defamatory comments on its website, a state appellate court has ruled.

A three-judge panel of the Appellate Court of Illinois (3rd Dist.) ruled 2-1 on June 1 in favor of an Illinois couple, Donald and Janet Maxon, who alleged that they were defamed by comments made by a poster on The Times of Ottawa, Ill., website, which is owned by Ottawa Publishing Co. In ordering the media company to unmask the identity of the poster, who suggested the Maxons had bribed the Ottawa town planning commission in an attempt to change a local zoning ordinance to benefit a planned bed and breakfast, the state appellate court rejected the approach that has been used in similar cases in other jurisdictions because, it said, the state’s procedural rules already provided sufficient protection.

“How much is Don and Janet from another Planet paying you for your betrayal????” the commenter, "FabFive from Ottawa" wrote in response to an article The Times published on March 20, 2008, according to court documents. About a month later, FabFive posted another comment referring to the “BRIBED members” of the commission.

The case, Maxon v. Ottawa Publishing Co., comes as media companies are rethinking their policies on reader comments to discourage anonymity. The Wall Street Journal, for example, allows readers to choose to view only comments made by regular contributors. Despite that trend, recent court cases have resulted in victories for the preservation of anonymity, including the New Hampshire Supreme Court’s May decision in The Mortgage Specialists v. Implode Explode Heavy Industries, which said that the l interests of anonymous commenters and those who wish to uncover their identity must be balanced.

In Maxon, The Reporters Committee for Freedom of the Press, along with several other media organizations, filed a friend-of-the-court brief on behalf of Ottawa Publishing.

Because the issue of whether a media company can be forced to identify anonymous posters accused of defamation had not previously been taken up by an Illinois appellate court, Ottawa Publishing had asked the court to adopt an approach developed in a 2001 New Jersey appellate case, Dendrite International Inc. v. Doe No. 3, and condensed in 2005 by the Delaware Supreme Court in Doe v. Cahill, which is favorable to anonymous commenters. The approach requires in part that a prospective plaintiff must produce sufficient evidence to establish the legal elements of defamation before they can uncover the identities of anonymous commenters. This threshold, as the Delaware high court noted in Cahill, discourages a “sue-first, ask-questions-later” strategy that would allow a plaintiff to unmask commenters by alleging specific defamation claims without evidence to back them up

The Illinois trial court used the approach of the Cahill court, but the appellate court reversed that decision, finding that an existing state discovery rule provided the courts “sufficient tools and discretion to protect any anonymous individual from any improper inquiry into his or her identity.” Unlike the Dendrite/Cahill test’s sufficient-evidence requirement, the approach adopted by the Illinois appellate court requires a prospective plaintiff only to state “with particularity facts that would establish a cause of action for defamation.”

That’s because the trial court, under Illinois Supreme Court Rule 224, must hold a hearing to determine that the poster is “one who may be responsible in damages” to the plaintiff. Under this approach, a prospective plaintiff would have to make factual claims sufficient to meet the elements of defamation.

Ottawa’s attorney, Michael Conway of Foley & Lardner in Chicago, said the rule is most commonly applied to cases where anonymity is not essential to the person alleged to be responsible, such as when a motorist seeks to learn from his car dealer the name of the company that manufactured a defective part that caused an accident.

“It’s almost like a pre-court subpoena where you ask the court, ‘Tell me the right person to sue,’” Conway said.

Appellate Judge Daniel Schmidt, in his dissent, wrote that the majority’s approach would make it too easy for would-be plaintiffs to compel a media outlet to disclose anonymous posters.

“Plaintiffs routinely plead ‘facts’ which later cannot be proven,” Schmidt wrote. “If ‘facts’ are pled that lead to the discovery of the speaker’s identity, and then these facts cannot later be proven, the harm to anonymous speech is a fait accompli’” – a thing already done.

Ottawa has not decided whether it will appeal the decision to the Illinois Supreme Court, Conway said. Ottawa has 35 days from the date of the appellate court’s decision to petition the high court.