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Plaintiffs need proof of factual dispute to unmask blogger

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NEWS MEDIA UPDATE   ·   DELAWARE   ·   Libel   ·   Oct. 6, 2005

NEWS MEDIA UPDATE   ·   DELAWARE   ·   Libel   ·   Oct. 6, 2005

Plaintiffs need proof of factual dispute to unmask blogger

  • A plaintiff seeking the identity of an anonymous speaker in a defamation suit must provide enough evidence to show a genuine dispute of facts in the case, the Supreme Court of Delaware ruled Wednesday.

Oct. 6, 2005  ·   The identity of anonymous speakers in defamation cases can remain masked unless the plaintiffs prove a genuine issue of material fact for nearly all elements of the defamation claim, the Delaware Supreme Court ruled Wednesday.

A defamation plaintiff wishing to know the identity of an anonymous speaker in Delaware must now provide enough evidence to show a real factual dispute for nearly all of the elements of the claim — that the defendant made a false, defamatory statement about the plaintiff that was published and that a third party would understand as defamatory.

The plaintiff is not required to prove a genuine dispute in regard to whether the defendant wrote with actual malice — knowing or recklessly disregarding the falsity of the statement, the court ruled.

“We are concerned that setting the standard too low will chill potential [Internet] posters from exercising their First Amendment right to speak anonymously,” Chief Justice Myron T. Steele wrote for a unanimous court. “The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all.”

The decision was almost perfect, said Paul Alan Levy of the Public Citizen Litigation Group in Washington, D.C., who argued the case.

“It’s a very thoughtful opinion and much of the analysis is much better than anything we’ve seen regarding what speech is actually like online.”

The lawsuit arose out of comments posted Sept. 18 and 19, 2004, on the “Smyrna/Clayton Issues Blog,” regarding Patrick Cahill and his performance as city councilman of Smyrna, Del. Posted by the anonymous “Proud Citizen,” the statements accused Cahill of “obvious mental deterioration,” and described “Gahill” (sic) as “paranoid.”

Cahill sued in November 2004, immediately attempting to determine the identity of “Proud Citizen.” The poster filed for a protective order to protect his identity by claiming his First Amendment right to speak anonymously. The trial court denied the motion and the Superior Court adopted a “good faith” standard which required that Cahill show only a good faith basis to bring the claim, that the poster’s identity was materially related to his claim, and that the information could not be obtained through any other source.

The Supreme Court, however, ruled that the good faith standard made it too easy for plaintiffs to find anonymous posters’ identities and applied the summary judgment standard used by courts when one side convinces the court that there are no undisputed facts in the case.

“Applying a summary judgment standard to a public figure defamation plaintiff’s discovery request to obtain an anonymous defendant’s identity will more appropriately protect against the chilling effect on anonymous First Amendment internet speech that can arise when plaintiffs bring trivial lawsuits primarily to harass or to unmask their critics,” Steele wrote.

The decision sends a strong message to courts around the country, according to Levy.

“The decision is extremely important because the Delaware Supreme Court is well respected. This is one of the main courts in the country for corporate litigation,” Levy said. “It gets a fair amount of respect for its analysis and well-written opinions. I expect for it to be very influential.”

But the decision was not perfect for anonymous writers. The court could have applied the so-called “New Jersey approach,” named after the 2001 case of Dendrite Intl., Inc. v. Doe from an intermediate New Jersey appellate court. Dendrite used the summary judgment standard, but also applied a balancing test between the defendant’s First Amendment right of anonymous speech against the strength of the plaintiff’s case. The Delaware decision does not use such a balancing test.

“The one bad side is the rejection of the balancing effect of the New Jersey approach. There are cases where there are dire effects following the loss of anonymity,” Levy said. “Courts should have a way to take consequences into account. There’s going to be a debate between the New Jersey and Delaware approach.”

Without a balancing test, Levy worries about what might happen if China, for example, filed a defamation suit and attempted to identify a poster. If that person is identified, the consequences for the poster and the poster’s family could be devastating, according to Levy.

“This is a home- run decision, not a grand-slam home run, but still a home run,” he said.

(Doe v. Cahill; Media Counsel: Paul Alan Levy, Public Citizen Litigation Group, Washington, D.C.)CM

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