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Victory for online speech in Maryland

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  1. Libel and Privacy
Maryland’s highest court on Friday ruled that a newspaper company does not have to reveal the identities of three people…

Maryland’s highest court on Friday ruled that a newspaper company does not have to reveal the identities of three people who commented anonymously on a newspaper-owned community forum Web site.

In upholding the right to anonymous speech, the court also for the first time adopted a standard for lower courts to apply when dealing with anonymous defendants in defamation cases.

In Independent Newspapers v. Brodie, plaintiff Zebulon Brodie sued three John Doe defendants who posted anonymous comments on a Web site owned by Independent Newspapers. Brodie alleged that the statements, which described a Dunkin’ Donuts shop he owned as one “of the most dirty and unsanitary-looking food-service places I have seen,” were defamatory, and he subpoenaed Independent Newspapers for the identities of the anonymous commenters.

The trial court in Maryland ordered the newspaper company to reveal the identities of the bloggers. Independent Newspapers appealed, and in an unusual procedural move, the highest court in Maryland decided to take the case, instead of sending it to the mid-level appellate court. In the opinion, the court recognized the need to balance the First Amendment issues with the right to seek protection against a defamation claim.

“On the one hand, posters have a First Amendment right to retain their anonymity and not to be subject to frivolous suits for defamation brought solely to unmask their identity. . . . On the other, viable causes of actions for defamation should not be barred in the Internet context,” the opinion states.

The court adopted a five-part test that had been articulated in a 2001 New Jersey case. The test recognizes that anonymous bloggers be notified when a subpoena is seeking their identity, requires the plaintiff to set forth a basis for his or her lawsuit, and weighs the First Amendment concerns against the need to protect the plaintiff from defamatory statements.

The Reporters Committee filed a friend-of-the-court brief urging the court to protect the anonymous speakers and to adopt the five-part standard.