The Indiana Court of Appeals reversed a lower court's decision ordering The Indianapolis Star to reveal the identity of an anonymous commenter who was sued for defamation for comments made on the newspaper’s website.
In the ruling, the court said it weighed the First Amendment rights of the anonymous commenter versus the possible harm caused by the allegedly derogatory statements the commenter made on the website against the former head of a non-profit organization who filed the defamation suit.
“Under the United States Constitution, to strike a balance between protecting anonymous speech and preventing defamatory speech, we adopt a modified version of the Dendrite test … with this test being the most speech-protective standard that has been articulated,” the court opinion stated.
The Dendrite test is a five-prong assessment that is used in determining if the identities of anonymous commenters can be subpoenaed.
The court modified the Dendrite test, now requiring a complainant to lay out only those elements of their claim that are "not dependant on the commenter's identity." Indiana's law on defamation requires that the plaintiff show actual malice — a showing that would be impossible without the identify of the commenter, the court wrote. Therefore, the court modified the Dendrite test to not require the plaintiff to present evidence of actual malice.
Jeffrey M. Miller, the former CEO and president of Junior Achievement of Central Indiana – a non-profit providing financial education to youth in the state – sued numerous parties after Indianapolis media outlets ran stories that questioned a building project Miller was involved in.
“It is a commonsensical [approach] because anybody can file a defamation action and make allegations and that simply cannot be enough to uncover whistleblowers … from the First Amendment standpoint it’s a very First Amendment friendly, pro-free speech application [of the test],” said Chuck Tobin, a media lawyer who filed a friend-of-the court brief suggesting the Dendrite test be applied.
According to court documents, Miller retired from Junior Achievement in Dec. 2008 but maintained a position as president with the Experiential Learning and Entrepreneurship Foundation – an organization that supported the non-profit until early 2010. The Star ran a story in March 2010 stating that Junior Achievement was “facing a series of questions about missed payments to contractors on a building project and unaccounted for grant money.”
Miller sued a number of parties who he claimed had made defamatory statements that led local media organizations to run stories about the project’s misfortune.
In the defamation case, Miller has sought the identity of an online commenter – going by the pseudonym "DownWithTheColts" – who wrote on the Star's website, “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the [Foundation] board. The “missing” money can be found in their bank accounts."
In March 2011, a Marion Superior Court judge ordered IBJ, the Star and WTRV-TV to identify numerous anonymous users who had commented on their websites – but the Star refused and appealed that court’s decision, according to Kevin Betz, Miller's attorney.
A trial court will now reexamine the case using Dendrite test, which was first developed by the New Jersey Supreme Court in a 2001 case called Dendrite International v. Doe involving commenters on a Yahoo message board. The five-tiered test requires a complainant to: provide notice to the anonymous commenter to find counsel and respond; identify specific defamatory statements; state the elements of the cause of action; and, provide sufficient evidence for each part of the claim. The court must then balance the right to anonymous speech against the plaintiff’s interest in the poster’s identity.