The official first had to prove that the remarks were capable of
a defamatory meaning – and he had not, said the Court.
The case concerned postings by “Proud Citizen”, an anonymous
blogger on a local website known as the Smyrna/Clayton Issues Blog,
in September last year.
Proud Citizen called into question the abilities of Smyrna Town
Council member Patrick Cahill, referring to his alleged “character
flaws”, “mental deterioration”, “failed leadership” and describing
him at one point as “Gahill”.
In November 2004, Cahill and his wife sued the blogger,
described as John Doe No 1 in the court papers, and three other
anonymous bloggers, claiming that John Doe No 1 had accused Cahill
of suffering from “mental defects and diseases” and that the
misspelling of his name implied he was “engaging in extramarital,
homosexual affairs.”
Without notice to the bloggers, the Cahills sought to identify
their critics through a subpoena to their ISP. The ISP, Comcast,
notified the four bloggers.
The bloggers immediately filed for a protective order, on the
grounds that the disclosure would violate their First Amendment
right to criticise a public official anonymously, but the trial
court denied the motion.
It took a “good faith” approach to the question of when a person
pursuing a defamation action could force the disclosure of his
defamer’s identity.
Accordingly, the Cahills had to show a “legitimate, good faith
basis upon which to bring the underlying claim”; that the
identifying information was “directly and materially related to
their claim”; and that it could not be obtained from any other
source. In the trial court’s opinion, the case was proved.
John Doe No 1 appealed, and on Wednesday, the Delaware Supreme
Court reversed the lower court ruling.
The Supreme Court ruling
In the opinion of the five judges of the Delaware Supreme Court,
the “good faith” standard was not tough enough.
“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,” wrote Chief
Justice Myron Steele, giving the opinion of the court.
The court was concerned that plaintiffs could easily meet the
standard of the good faith test without having a particularly
strong defamation case, with the result that trivial cases might be
brought for purposes of intimidation or revenge.
The court therefore decided to apply a “summary judgment”
standard to the case – namely, that the plaintiff must be able to
show that he has a basic defamation claim against the defendant
before the court will order an ISP to identify that defendant. The
plaintiff does not have to show actual malice, said the court, as
this would be near impossible to prove without knowing the
defendant’s identity.
In addition, wrote Steele, plaintiffs harmed by an internet blog
have an instant means of remedying the situation – blogging
themselves. He explained:
“The plaintiff can thereby easily correct
any misstatements or falsehoods, respond to character attacks, and
generally set the record straight. This unique feature of internet
communications allows a potential plaintiff ready access to
mitigate the harm, if any, he has suffered to his reputation as a
result of an anonymous defendant’s allegedly defamatory statements
made on an internet blog or in a chat room.”
But the summary judgment standard does not apply just to
defamation discovery issues related to the internet, said the
court. It applies to defamation discovery issues in any form of
publication internet blog have an instant means of remedying the
situation – although chat rooms and blogs do have unique issues
relevant in considering the defamation claim itself.
“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,” wrote Chief
Justice Steele.
On this occasion, he explained, in the context in which they
were given, the “Proud Citizen” postings were only opinion and no
reasonable person would have interpreted them as factual.
Accordingly they were not defamatory.
This meant that the Cahills had not satisfied the “summary
judgment” test, and the discovery motion could not be granted.
Responses
Paul Alan Levy, a lawyer with Public Citizen, which filed a
motion to the court in support of John Doe No 1, welcomed the
ruling.
“This is the first state Supreme Court to squarely decide the
standards to govern John Doe subpoena cases,” he said. “The court’s
determination to require sufficient evidence before a critic is
outed will go a long way toward reassuring citizens that they
remain free to anonymously criticise public officials.”
According to Kurt Opsahl, staff attorney at rights group the
Electronic Frontier Foundation (EFF), which also joined in the
“friends of the Court” brief, "Bloggers have a strong First
Amendment right to speak anonymously."
"It is critical that plaintiffs' claims face a stringent test
before a court unmasks online critics, lest we reduce the vibrant
public debates on the internet to the cautious views of a select
few voices," he added.
