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October 6, 2005
Online Anonymity at the Expense of Blog Credibility?
While several hundred of us were confabbing at the We Media conference yesterday, the Delaware Supreme Court published its ruling on a case centering on two issues that are at the heart of participatory media: the right to online anonymity and the credibility of blogs.
The case in question, John Doe No. 1 v. Patrick Cahill and Julia Cahill (PDF), began with a series of messages posted to a site referred to by the court as the Smyrna/Clayton Issues Blog. On September 18, 2004, an anonymous participant using the pseudonym "Proud Citizen" posted a message critical of local city councilman Patrick Cahill (emphasis added by the Delaware Supreme Court):
If only Councilman Cahill was able to display the same leadership skills, energy and enthusiasm toward the revitalization and growth of the fine town of Smyrna as Mayor Schaeffer has demonstrated! While Mayor Schaeffer has made great strides toward improving the livelihood of Smyrna's citizens, Cahill has devoted all of his energy to being a divisive impediment to any kind of cooperative movement. Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration. Cahill is a prime example of failed leadership - his eventual ousting is exactly what Smyrna needs in order to move forward and establish a community that is able to thrive on its own economic stability and common pride in its town.
The next day, Proud Citizen posted another statement:
Gahill [sic] is as paranoid as everyone in the town thinks he is. The mayor needs support from his citizens and protections from unfounded attacks....
These statements infuriated Cahill, who felt he had been defamed. Cahill and his wife decided to sue Proud Citizen, but first they had to find out who he was. Their lawyers conducted a deposition of Independent Newspapers, owner of the online forum. They revealed Proud Citizen's IP address - the numerical address that can be traced back to his computer's Internet connection. Armed with this information, they soon determined that Comcast owned that IP address, so the Cahills obtained a court order to force Comcast to reveal Proud Citizen's identity. When Comcast received the court order, they informed Proud Citizen, who promptly filed an emergency motion for a protective order to protect his anonymity.
When the case was heard before a judge, the judge ruled that Proud Citizen had defamed Cahill, so it was reasonable to force Proud Citizen to reveal his identity. Proud Citizen appealed the decision all the way to the Delaware Supreme Court, which yesterday ruled in his favor and against the Cahills.
In the court's ruling, Chief Justice Steele laid out their thinking on the matter. Like so many Internet-related cases before it, the ruling took great pains to note the unique nature of the Internet:
The internet is a unique democratizing medium unlike anything that has come before. The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when "many citizens [were] barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas" the internet now allows anyone with a phone line to "become a town crier with a voice that resonates farther than it could from any soapbox." Through the internet, speakers can bypass mainstream media to speak directly to "an audience larger and more diverse than any the Framers could have imagined." Moreover, speakers on internet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics.
Among the various attributes of Internet publishing, Steele said, is the commonness of anonymity:
Internet speech is often anonymous. "Many participants in cyberspace discussions employ pseudonymous identities, and, even when a speaker chooses to reveal her real name, she may still be anonymous for all practical purposes."For better or worse, then, "the audience must evaluate [a] speaker's ideas based on her words alone." This unique feature of [the internet] promises to make public debate in cyberspace less hierarchical and discriminatory" than in the real world because it disguises status indicators such as race, class, and age.
Moreover, previous cases have set a clear precedent about the right to online free expression, harkening back to the golden age of colonial pamphleteering:
It is clear that speech over the internet is entitled to First Amendment protection. This protection extends to anonymous internet speech. Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering. As the United States Supreme Court recently noted, "anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent. The United States Supreme Court continued, "[t]he right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse."
"It also is clear," Justice Steele added, "that the First Amendment does not protect defamatory speech." The challenge, therefore, is setting the bar at a reasonable level to allow people to seek redress when they've been defamed, while at the same time not creating a chilling effect that tears away the right of anonymity, effectively preventing the public from speaking its mind. "[W]e must adopt a standard that appropriately balances one person's right to speak anonymously against another person's right to protect his reputation," Steele writes.
We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all. A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker "may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes."Plaintiffs can often initially plead sufficient facts to meet the good faith test applied by the Superior Court, even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision. After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution.Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, "[t]he sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money."
"The goals of this new breed libel action are largely symbolic, the primary goal being to silence John Doe and others like him."This "sue first, ask questions later" approach, coupled with standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked.
Justice Steele then goes on to describe the spectrum of content available over the Internet. In the process of doing so, he stakes much of the Delaware Supreme Court's final decision on a principle that would have stirred quite a debate at yesterday's conference: that blog content should be taken less seriously than content produced by mainstream media. To wit (emphasis added):
While as a form of communication the internet is not legally distinct and warrants no special protection above and beyond what traditional forms of communication receive, it is worth noting that certain factual and contextual issues relevant to chat rooms and blogs are particularly important in analyzing the defamation claim itself. Ranked in terms of reliability, there is a spectrum of sources on the internet. For example, chat rooms and blogs are generally not as reliable as the Wall Street Journal Online. Blogs and chat rooms tend to be vehicles for the expression of opinions; by their very nature, they are not a source of facts or data upon which a reasonable person would rely.
Steele goes on to cite several cases in which courts questioned the reliability of online content produced by the general public. One case, Rocker Mgmt., LLC v. John Does 1 through 20, noted that
the messages tended to be "replete with grammar and spelling errors; most posters do not even use capital letters. Many of the messages are vulgar and offensive, and are filled with hyperbole." The court continued, "in this context, readers are unlikely to view messages posted anonymously as assertions of fact."
Another cased he cites states the following:
"[u]nlike…traditional media, there are no controls on the postings. Literally anyone who has access to the internet has access to the chatrooms."Moreover, "the statements were posted in the general cacophony of an internet chat-room in which about 1,000 messages a week are posted….Importantly, the postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents….To put it mildly, these postings…lack the formality and polish typically found in documents in which a reader would expect to find fact. "The court concluded that the general tone, context, style and content of the postings "strongly suggest that they are the opinions of the posters."Accordingly, the "reasonable reader, looking at the hundreds and thousands of postings about the company from a wide variety of posters, would not expect that [the defendant] was airing anything other than his personal views...."
"Apart from the editorial page," he continues, "a reasonable person reading a newspaper in print or online, for example, can assume that the statements are factually based and researched. This is not the case when the statements are made on blogs or in chat rooms." Justice Steele then quotes from Lyrissa Barnett Lidsky's Silencing John Doe: Defamation & Discourse in Cyberspace:
"When one views…allegedly defamatory statements in context - both the immediate context and the broader social context - it becomes apparent that many of the allegedly defamatory statements cannot be interpreted as stating actual facts, but instead are either ‘subjective speculation' or ‘merely rhetorical hyperbole.'"
So based on the presumption that blogs and online forums are platforms solely for opinions rather than facts, the court sides with Proud Citizen, aka John Doe (once again, with added emphasis):
Given the context, no reasonable person could have interpreted these statements as being anything other than opinion. The guidelines at the top of the blog specifically state that the forum is dedicated to opinions about issues in Smyrna. If more evidence of that were needed, another contribution to the blog responded to Doe's second posting as follows: "Proud Citizen, you asked for support, I don't think you are going to get it here. Just by reading both sides, your tone and choice of words is [that of] a type of person that couldn't convince me. You sound like the person with all the anger and hate…" At least one reader of the blog quickly reached the conclusion that Doe's comments were no more than unfounded and unconvincing opinion.Given the context of the statement and the normally (and inherently) unreliable nature of assertions posted in chat rooms and on blogs, this is the only supportable conclusion. Read in the context of an internet blog, these statements did not imply any assertions of underlying objective facts. Accordingly, we hold that as a matter of law a reasonable person would not interpret Doe's statements as stating facts about Cahill. The statements are, therefore, incapable of a defamatory meaning.
Thus, in the state of Delaware, it would appear that bloggers, including anonymous ones, need not fear speaking their mind against public officials. The downside, though, is that as far as the courts are concerned, they shouldn't be taken seriously either. What's even more puzzling about all of this is that website in question isn't even a blog. Almost any netizen who's spent more than five minutes participating in online discussions would immediately recognize the site is a bulletin board and not a blog. (The site's hosts even categorize it as a public issues forum rather than a blog.) How and why the courts ended up deciding that bulletin boards and blogs are the same species is beyond me; the same phylum perhaps, but not the same species.
The justices' decision to lump them together does disservice to the thousands and thousands of bloggers who take their blogging very seriously. No doubt, millions of blogs are little more than personal billboards or exercises in navel gazing, while countless others exist solely for the purpose of spreading opinion rather than "facts." But that doesn't mean you should dismiss the work of thousands of bloggers playing the important role of citizen journalists? Even those blogs that are opinion-oriented often have well-constructed, thoughtful opinions. Does that make them less "credible"? Less credible than the newspaper editorials held in such high regard by the court? In the state of Delaware, at least, the answer is apparently yes.
Online Anonymity 1, Blog Credibility, 0. Case dismissed.
tag: We Media
Posted by acarvin at October 6, 2005 4:10 PM
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