North Carolina Superior Court Holds State Shield Law Protects Identities of Newspaper Website Commenters

On July 27, 2010, N.C. Superior Court Judge Calvin E. Murphy ruled from the bench that North Carolina’s shield law, N.C. Gen. Stat. § 8-53.11, protects a newspaper from the compelled disclosure during judicial proceedings of the identities of anonymous commenters to the newspaper’s website. Judge Murphy signed the written order in the case on August 16, and it is available here. To our knowledge, this is the first case in which a North Carolina court has ruled that the state's shield law applies to the identities of anonymous website commenters, although other states have been grappling with the issue with respect to their own state shield laws.

The case stems from the criminal proceedings in Gaston County, N.C., against Michael Mead, who has been charged with murder. Mead’s attorney issued a subpoena to the publisher of the Gaston Gazette, at first requesting identifying information related to a particular website poster (“justicen2010”), but then later also requesting a copy of the Gaston Gazette’s contract with the provider of its website comment forum. (More information on the case is available from the Gazette’s website).

The Gazette challenged the subpoena and raised the state shield law as a protection against compelled disclosure. Judge Murphy agreed with the Gazette’s position, holding that the information sought by the defendant—both the website commenters’ identities and the business contract with the comment forum provider—were confidential information related to the newspaper’s and publisher’s newsgathering and news publishing activities and were obtained while the publisher was acting as a “journalist,” as defined in N.C. Gen. Stat. § 8-53.11(a)(1). (Note: The information at issue in this case was confidential, but North Carolina’s shield law protects both confidential and non-confidential information.) Thus, the judge held that the shield law applied to the facts at hand.

Further applying the statute, Judge Murphy held that the defendant failed to overcome the qualified privilege set forth in N.C. Gen. Stat. § 8-53.11 by demonstrating clearly and specifically that the information and documents sought (1) were relevant and material to the proper administration of the legal proceeding at issue, (2) could not be obtained from alternative sources, and (3) were essential to the maintenance of a claim or defense. In the absence of this showing by the defendant, Judge Murphy quashed the subpoena.

With this ruling, the North Carolina Superior Court now joins other state courts that have held their respective state shield laws protect anonymous website commentary from compelled disclosure in judicial proceedings.

Cleveland Newspaper Unmasks Anonymous Commenter

In a decision that raises a host of legal and ethical questions, the Cleveland Plain Dealer today disclosed the identity of someone who had frequently posted anonymous commentary on the newspaper's web site.  According to the paper, the commenter, who used the name "lawmiss," was using the personal email account of local trial Judge Shirley Strickland Saffold and was commenting in harsh terms about cases involving Judge Saffold.

While the Plain Dealer quotes the judge's daughter as admitting to being "lawmiss," this story comes less than two weeks after Judge Saffold ordered the arrest of a Plain Dealer reporter who failed to appear at a hearing to determine how the newspaper obtained a psychiatric evaluation of a suspected serial killer on trial before the judge.  Another local judge later admitted to being the reporter's source.

In an explanatory story also published today, the newspaper claims that it began investigating "lawmiss" after he or she directed comments at the relative of a Plain Dealer reporter.  Once it connected "lawmiss" to Judge Saffold's email account, the newspaper made a public records request for details of her use of her government-provided computer.

Plain Dealer Editor Susan Goldberg argued that once the paper found out that the commenter was somehow connected to the judge, it had a duty to report the information.  She said:

What if it ever came to light that someone using the e-mail of a sitting judge made comments on a public Web site about cases she was hearing, and we did not disclose it? These are capital crimes and life-and-death issues for these defendants. I think not to disclose this would be a violation of our mission and damaging to our credibility as a news organization.

Journalism ethicist Bob Steele disagrees, saying: "It does raise the question of the wisdom and fairness of the newspaper using the registration system of the Web site for reporting purposes."

We have reported frequently over the past two years about newspapers' legal fights to prevent disclosure of anonymous commentary on its web site and about the developing trend towards protecting this category of speech.  While the Plain Dealer certainly should enjoy the journalistic discretion to investigate and report stories about possible ethical breaches by people in power, decisions such as this will only provide ammunition to prosecutors and other attorneys seeking information about anonymous commenters.  After all, how important can the First Amendment interest be to the newspaper if, when it suits the paper's own reporting needs, the paper will not hesitate to investigate and disclose these same people?

To be clear, there is no question that under the Plain Dealer's online registration system, it had the right to investigate and disclose the identity of "lawmiss."  And it certainly made for a good (and important) story, one that will no doubt draw readers.  Goldberg is also correct that it is hard to see how the paper could ignore the story, once it made the decision to investigate "lawmiss."

Down the road, however, when the Plain Dealer seeks to quash a subpoena from a local politician seeking the identity of someone who he or she alleges posted defamatory material anonymously, Exhibit A to the plaintiff's brief will almost certainly be this story.  And if the paper loses the motion to quash, it may have no one to blame but itself.

UPDATE: See below for a clarifying comment from John Kroll from the Plain Dealer.

Fourth Circuit Affirms Section 230 Immunity on Motion to Dismiss

With 2009 drawing to a close, a panel of the Fourth Circuit affirmed a decision by the Eastern District of Virginia holding that the website was an “interactive computer service” entitled to immunity under Section 230 of the Communications Decency Act with respect to 20 website postings concerning a class-action lawsuit against an auto dealer. The Fourth Circuit’s opinion in Nemet Chevrolet, Ltd. v., Inc. is linked here.

The Fourth Circuit panel’s majority opinion is largely procedural, but it offers an important lesson about how the court views Section 230 immunity. A plaintiff in the Fourth Circuit seeking to avoid a website defendant’s Section 230 immunity by characterizing the defendant as an “information content provider” at the motion to dismiss stage of litigation must provide more than conclusory statements and speculation to state a claim. 

Nemet did not dispute in its amended complaint that was an “interactive computer service” generally entitled to immunity under Section 230. Instead, Nemet alleged that the defendant was an “information content provider” subject to liability under Section 230 with respect to 20 complaints posted on the website.  The Fourth Circuit panel disagreed. The nut of the majority opinion is encapsulated in this quote:

[The Federal Rules of Civil Procedure] require[] “more than conclusions” to “unlock the doors of discovery for a plaintiff.” Viewed in the correct “factual context,” Nemet’s stark allegations are nothing more than a “formulaic recitation” of one of the elements of its claims. A plaintiff must offer more than “[t]hreadbare recitals of the elements of a cause of action” and “conclusory statements,” however, to show its entitlement to relief.

Section 230 defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Based on the governing precedent, the Fourth Circuit panel reviewed the Nemet case to determine “whether the facts pled by Nemet, as to the application of CDA immunity, make its claim that is an information content provider [subject to liability under Section 230] merely possible or whether Nemet has nudged the claim ‘across the line from conceivable to plausible.’”

In support of its claim for defamation and tortious interference with business expectancy, Nemet argued that was an “information content provider,” because of (1) the structure and design of the website or (2)’s participation in preparing the 20 complained of consumer complaints. Nemet argued that the defendant’s actions to solicit the consumer complaints, steer the complaints into specific categories, contact customers to obtain more information about their complaints, help draft or revise their complaints, and promise recovery by joining a class-action lawsuit rendered responsible, in whole or in part, for the creation or development of the posts. In other words, these actions moved into the “information content provider” category.


At first blush, it would seem that Nemet had a plausible argument. But, reviewing Nemet’s amended complaint, the majority found the plaintiff did not allege sufficient facts to demonstrate the defendant’s status as an “information content provider.” The majority wrote, “[e]ven accepting as true all of the facts Nemet has pled as to’s liability for the structure and design of its website, the amended complaint ‘does not show, or even intimate,’ that contributed to the allegedly fraudulent nature of the comments at issue.”


The majority distinguished this case from the FHC v. case, in which the Ninth Circuit held liable as the developer of unlawful website content because required users to disclose their sex, family status, and sexual orientation, as well as those of the users’ desired roommates, using a list of pre-determined responses. According to the Fourth Circuit, “the Ninth Circuit did not hold that a website operator becomes an information content provider because the information posted on its website may be developed in a way unrelated to its initial posting, such as its potential to further a class-action lawsuit. merely adopted a definition of 'development,' for purposes of § 230(f)(3), that includes 'materially contributing' to a given piece of information’s alleged unlawfulness.”


The Fourth Circuit also rejected Nemet’s argument that became an “information content provider” by asking questions about consumer complaints against Nemet or by helping consumers draft or revise their complaints. With respect to drafting or revising complaints, the majority noted that the Fourth Circuit’s standards required Nemet to allege action “more than a website operator performs as part of its traditional editorial function” to render it an “information content provider.”


Finally, the panel majority rejected Nemet’s claim that fabricated eight of the 20 website posts. If the defendant made up these complaints, then, presumably, the court would have to find the creator of—and, therefore, “information content provider” of—the fabricated content. Nemet’s primary evidence of the fabrication was the fact that its own internal dealership records did not match the dates, car models, and first names associated with these eight complaints. The majority found this allegation to be “pure speculation and a conclusory allegation of an element of the [Section 230] immunity claim. . . .” (Chief District Judge Jones dissented from the majority on this issue, writing that the majority held Nemet to too high a pleading standard for these eight complaints.)


Thus, Nemet stands for the proposition that to make it past the initial pleadings stage, a plaintiff must allege facts and offer more than mere conclusory statements and speculative inferences about how a defendant qualifies as the developer or creator of website content. 

New Hampshire Supreme Court Hears Anonymous Source Dispute

In light of our recent discussion of Bartnicki v. Vopper and the legality of publishing information that was illegally obtained by a third party, this recent case from New Hampshire drew our attention.

In early November, the New Hampshire Supreme Court heard arguments in a case involving a website's refusal to identify the author of a post that criticized mortgage lender The Mortgage Specialists Inc.  The site, Mortgage Lender Implode-O-Meter, had posted a story concerning a state investigation into MSI for, among other things, allegedly forging signatures and destroying documents.  The site also posted a copy of a document MSI had prepared for the state Banking Department.   The document, which was provided by an anonymous source, is supposed to be confidential under state law.

In addition, someone calling themself “Brianbattersby” posted a comment on the site accusing MSI President Michael Gill of fraud.

MSI demanded that the website, owned by Implode-Explode Heavy Industries, remove the document and the anonymous comment, identify the identify of the person who leaked the document, and agree not to republish the document in the future.  The website agreed to the first request, but refused the second and third.

MSI then sued in state court for both the identity of "Brianbattersby" and the person who leaked the confidential document.  This spring, a county judge ordered the website to disclose the information MSI sought and enjoined the site from further publication of the confidential chart.

The trial court decision is troubling for several reasons.  First, the court acknowledges, but then does not address in any substantive way, the website's argument that the statute relied on by MSI and the court only covers state authorities' conduct and does not make it illegal for a third party to publish the document at issue.  Rather, the court seems to assume publication is illegal and makes much of the fact that no penalties are being assessed or sought against the website.

The United States Supreme Court in Florida Star v. BJF held that a newspaper could not be punished for publication of truthful material lawfully obtained "absent a need to further a state interest of the highest order."  In the New Hampshire case, there is no allegation that the website obtained the document illegally, only that its publication was illegal.  Furthermore, the fact that the website in this case is not subject to penalties seems legally irrelevant, as it is being restrained from publishing truthful, lawfully obtained, information.

Second, in forcing the website to disclose the identity of "Brianbattersby," the court engaged in no analysis of the speaker's right to post anonymously.  As we have discussed previously, the clear trend nationally is to require a plaintiff seeking the identity of an anonymous speaker accused of defamation to meet some elevated pleading standard.  There is no indication that anything of the sort was required here.

Finally, it is worth noting that New Hampshire is one of the few states without any kind of shield law, meaning that the website has far less legal recourse when asked to reveal the identity of its source for the document.

For links to other pleadings in this case, click here.  We are awaiting a decision from the New Hampshire Supreme Court and will report on it once it's handed down.

Appellate Court in D.C. Protects Anonymous Speech

The District of Columbia Court of Appeals, the highest court for cases arising in the District of Columbia, continued the recent trend of requiring defamation plaintiffs to meet an elevated legal standard when they serve a subpoena seeking the identity of an anonymous speaker.  Like Maryland's highest court, the District of Columbia appellate court held that a plaintiff must proffer sufficient evidence to survive summary judgment before a motion to compel will be granted.

The D.C. case, Solers, Inc. v. John Doe, was brought by Solers, a software company, alleging that Doe had defamed the company and tortiously interfered with prospective business opportunities by submitting an anonymous complaint against Solers to a software industry group.  In the anonymous complaint submitted to the Software & Information Industry Association, Doe alleged that Solers was using pirated software.  SIIA investigated the charge but ultimately took no legal action against the company.

Solers filed suit against Doe and served a subpoena on the SIAA seeking his identity.  SIAA moved to quash the subpoena, and a D.C. superior court ultimately quashed the subpoena, holding that the complaint would not survive a motion to dismiss and therefore Doe's rights outweighed those of the company.

The Court of Appeals, like the Maryland Court of Appeals, engaged in an exhaustive review of the various standards that have been applied to defamation plaintiffs seeking the identity of an anonymous commenter.  As we have reported throughout the year, the clear trend is to protect anonymous speakers unless the plaintiff meets some elevated standard. 

The D.C. court adopted the test outlined in Doe v. Cahill, 884 A.2d 451 (Del. 2005), with some slight revisions.  The D.C. court held that a court faced with a subpoena seeking the identity of an anonymous speaker must:

(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

The court was careful to emphasize the "within its control" language in the fourth element, pointing out that the plaintiff should not be required to satisfy elements of the claim "dependent upon knowing the identity of the anonymous speaker."  In contrast to the Maryland Court of Appeals, however, the D.C. court did not require any First Amendment balancing test as a final step to the analysis, judging that to be unnecessary in light of the first five steps.

Applying this test, the court remanded the case to allow Solers an opportunity to present additional evidence supporting its claim of defamation.

Minnesota Court of Appeals Finds MySpace Posting Constitutes "Publicity Per Se"

A panel of the Minnesota Court of Appeals has ruled in an invasion of privacy case that a posting revealing certain private facts about a plaintiff constituted “publicity per se.”  Although the appellate court ultimately held that the lower court properly granted summary judgment on the invasion of privacy claims in favor of the defendants, the publicity aspect of the ruling is an important because it demonstrates how “old media” publication torts are being applied to new social media.

The plaintiff in Yath v. Fairview Clinics, N.P., Docket No. 27-CV-06-12506, slip op. (June 23, 2009), alleged that a medical assistant in a clinic she attended “snooped” in the plaintiff’s medical files without a proper purpose and discussed sensitive personal information she found in the files with another employee of the clinic, one of the defendants in the appeal.  The plaintiff also claimed that the employee-defendant, the medical assistant, and others published a MySpace web page about the plaintiff that publicized private information obtained from the her medical records—according to the MySpace page, the plaintiff had a sexually transmitted disease, recently cheated on her husband, and was addicted to plastic surgery. 

The plaintiff sued the employee-defendant, the medical assistant, the clinic (on a vicarious liability theory), and one other person for, among other claims, invasion of privacy based on publication of private facts.  By the time the matter reached the Court of Appeals, only the employee-defendant and the clinic were still in the case.

The lower court had granted summary judgment in favor of the two defendants on the invasion of privacy claim because the evidence showed that only a few people accessed the MySpace page in the 24 to 48 hours during which the page was live.

However, on review, the Court of Appeals held that the lower court had misapplied the law concerning “publicity” in invasion of privacy cases.  "Publicity" is a required element of the publication of private facts tort.

“Publicity,” for the purposes of an invasion-of-privacy claim, means that “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” In other words, there are two methods to satisfy the publicity element of an invasion-of-privacy claim: the first method is by proving a single communication to the public, and the second method is by proving communication to individuals in such a large number that the information is deemed to have been communicated to the public.

According to the appellate court, the lower court had incorrectly focused on the second prong of the publicity requirement—communication to a sufficiently large number of people—while ignoring the first prong.  Just as publication in a newspaper or a magazine of small circulation or in a radio broadcast would constitute “publicity,” so did the publication on MySpace in this case.  When information passes through a public medium like the Internet, the “publicity” requirement for invasion of privacy purposes is satisfied as soon as the information is disseminated.  “[T]he challenged communication here constitutes publicity under the first method, or publicity per se. . . . [Plaintiff’s] private information was posted on a public webpage for anyone to view.  This Internet communication is materially similar in nature to a newspaper publication or a radio broadcast because upon release it is available to the public at large.

The court’s ruling means, in effect, that the number of people who actually view a publicly available website is not relevant to the “publicity” requirement for invasion of privacy purposes.  The “publicity” occurs as soon as the information is made publicly available for anyone to view on the Internet.  However, as the appellate court acknowledged, the number of people who view such a website may be relevant when calculating the damages the plaintiff suffered (i.e., the more people who view the website, the greater the potential damages).

In reaching its ruling, the Court of Appeals took pains to put invasion of privacy in the context of our “Information Age":

That the Internet vastly enlarges both the amount of information publicly available and the number of sources offering information does not erode the reasoning leading us to hold that posting information on a publicly accessible webpage constitutes publicity.  If a late-night radio broadcast aired for a few seconds and potentially heard by a few hundred (or by no one) constitutes publicity as a matter of law, a maliciously fashioned webpage posted for one or two days and potentially read by hundreds, thousands, millions (or by no one) also constitutes publicity as a matter of law.

It is true that mass communication is no longer limited to a tiny handful of commercial purveyors and that we live with much greater access to information than the era in which the tort of invasion of privacy developed.  A town crier could reach dozens, a handbill hundreds, a newspaper or radio station tens of thousands, a television station millions, and now a publicly accessible webpage can present the story of someone‘s private life, in this case complete with a photograph and other identifying features, to more than one billion Internet surfers worldwide.  This extraordinary advancement in communication argues for, not against, a holding that the MySpace posting constitutes publicity.

The Pioneer Press has additional commentary on the case.

Texas Court Protects Anonymous Posters' Identities in Criminal Proceeding

Texas court has ruled that the Abilene Reporter-News does not have to reveal the identities of anonymous posters who submitted online commentary concerning a murder defendant to an Abilene newspaper’s website. According to the Reporter-News, the anonymous posters’ identities had been sought by the defendant’s attorney to ensure that none of the posters were selected to sit on the jury for the murder trial, which began on June 23. 

The Taylor County District Court’s decision to protect the posters’ identities, which was issued on July 19, is one of the early applications of the newly enacted Texas shield law. (We previously reported on the Texas shield law in civil and criminal proceedings.) At least in this case and one other reported on by the Reporter's Committee for Freedom of the Press, it appears that the Texas trial courts are ably applying the statutory privilege, which just took effect in May 2009.

According to the Reporter-News’s coverage, the defendant’s attorney argued that his client’s interest in a fair trial outweighed the newspaper’s interest in protecting the identities of the posters. However, in addition to arguing that the shield law protected the commenters’ identities from disclosure, the Reporter-News also argued that the defendant’s right to a fair trial could be adequately protected by questioning prospective jurors during jury selection. 

The Texas court joins a growing number of jurisdictions that have declined to require website publishers from disclosing the identities of anonymous posters. We have covered a number of those outcomes over the past several months, including cases from Maryland and Pennsylvania

Although the case law in favor of protecting anonymous posters' identities from disclosure is growing, the cases are not uniformly in that direction, as's Mediashift has recently discussed.

New Limits on Section 230 Immunity

In a seemingly simple little case that has turned out to have all kinds of interesting and important twists, the United States Court of Appeals for the Ninth Circuit last month held that Section 230 of the Communications Decency Act did not preclude a plaintiff from stating a valid claim for promissory estoppel against an Internet service provider.

The case, Barnes v. Yahoo!, Inc., arose in 2004 when Cecilia Barnes broke up with her long-term boyfriend, who responded by creating in Barnes’s name several Yahoo profiles that contained nude pictures of Barnes and various open solicitations for sex.  When Barnes was flooded with calls, personal visits, and emails, she followed Yahoo’s policy for getting a fraudulent profile removed by mailing in a request.  Two months later, the profiles remained, so Barnes contacted a local news program who began to report the story.  The day before the story was to run, a Yahoo representative contacted Barnes, asked her to fax in another removal request, and said she would “personally walk the statement over” to the group responsible for taking down a profile and see that it got done.


It did not, and Barnes sued for negligent undertaking, as described in Section 323 of the Restatement (Second) of Torts, and for promissory estoppel.


Barnes claimed that by promising to take down her profile and then failing to do so, Yahoo had undertaken a task that it subsequently completed negligently.  Moreover, Barnes asserted, Yahoo's promise constituted a contract that, once Barnes had relied upon it, the company could not later repudiate.


In response to the complaint, Yahoo moved to dismiss, arguing that Section 230 of the CDA provides Yahoo with immunity from Barnes's claims.  Section 230(c) reads, in part: 

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Yahoo is clearly an “interactive computer service” provider, and it did not create or develop the profiles at issue in whole or in part, so Yahoo should not have liability on any claim that would treat it as the "publisher" of those profiles.


On appeal, the Ninth Circuit held that Barnes’s negligent undertaking claim was barred by the Section 230 because, in the final analysis, what Barnes was alleging that Yahoo failed to do with due care was to remove a profile from its Web site.  That, the court said, is the essence of publishing -- deciding what gets published and what does not -- and Section 230 precludes Yahoo from liability for its actions as a publisher.


However, the court came to a different conclusion with respect to Barnes's promissory estoppel claim.  That claim, the court said, is a contract claim, not a tort claim, and Yahoo’s alleged breach had nothing to do with its role as a publisher.  Rather, Yahoo's potential liability was based on its promise to do something that it later failed to do.


To be clear, in addressing the negligent undertaking claim, the court said that the task that Yahoo had failed to complete constituted publishing and was covered by Section 230, and yet that very same conduct in the context of a contract claim was actionable.


While the court was careful to say that a simple monitoring policy or even “an attempt to help a particular person” will not always give rise to a contract claim, where the facts suggest that the company intended to be bound by its words, a claim might arise.  The court said that the solution for companies like Yahoo is easy -- “disclaim any intention to be bound” in the language of any monitoring policy or when agreeing to help a particular customer.


Leaving aside the particular claims, the court also made an interesting procedural ruling that may actually have more far-reaching impact than the rulings on the particular claims. The case had reached the court on a motion to dismiss in which Yahoo cited Section 230 as the reason Barnes failed to state a claim. The Ninth Circuit made clear that a Section 230 defense is an affirmative defense that is not appropriately asserted as a motion to dismiss, but rather as part of an answer.


For an interesting discussion of the implications of this part of the ruling, see this post on the Technology and Marketing Law Blog, which has posted extensively on this case.

Former LSU Student Files Libel Claim Against University Newspaper and Officials

A former Louisiana State University student recently filed a libel complaint against the student newspaper, the Daily Reveille, its management staff, and several officials associated with the university for alleged defamatory comments about the plaintiff that were anonymously posted on the newspaper’s website.  The Student Press Law Center provides a link to the amended complaint in a story about the lawsuit and also reports that the lawsuit has been dismissed in this follow up article.

The amended complaint alleged that the editor-in-chief and managing editor of the Daily Reveille “maintain control over approval and disapproval of all comments made” on the newspaper’s website.  The plaintiff pointed to four different allegedly libelous comments by anonymous posters published on the website. The Daily Reveille apparently published a news story in print and online concerning the filing of the lawsuit, which prompted the plaintiff to amend his complaint to include claims that the Daily Reveille’s coverage of the lawsuit “leads readers to believe that a possibility exists that the comments” identified as being libelous in the complaint “were indeed facts.”

The LSU case was an interesting twist on the pattern of anonymous Internet speech cases that we have reported on several times.  For example, we recently wrote about Independent Newspapers, Inc. v. Brodie, in which the Maryland Court of Appeals (the state's highest court) ruled that anonymous posters to an Internet news web site were protected by the First Amendment from having their identities disclosed to a civil litigant.  Like the LSU case, Independent Newspapers involved a defamation complaint concerning anonymous posts to a news website.  But, unlike Independent Newspapers, the plaintiff in LSU sought to hold the newspaper (and university officials) responsible for the allegedly defamatory content.  In Independent Newspapers, the plaintiff sought to compel the newspaper to reveal the posters’ identities through third-party discovery—the lawsuit was filed directly against the anonymous poster.

The plaintiff in the LSU case faced an uphill battle to hold the Daily Reveille liable for the posts due to Section 230 of the Communications Decency Act.  Indeed, according to the SPLC, the judge dismissed the lawsuit based on Section 230 immunity. 

Section 230 provides that providers or users of “interactive computer services” are generally not to be treated as the publishers of third-party content, and most courts that have considered the issue have interpreted the law so that newspaper websites qualify as providers of “interactive computer services.”  Thus, a newspaper that provides online news is generally immune from liability for defamatory statements made by anonymous (or non-anonymous) posters on the newspaper’s website. For more information on Section 230, including illustrative cases and examples of how immunity may be lost, see the Citizen Media Law Project’s website.

As noted by a source in the SPLC article on the LSU case, the usual way for a plaintiff to attempt to recover for anonymous Internet speech is to file a John Doe lawsuit and seek to compel disclosure of the posters’ identities through third-party discovery, as in Independent Newspapers.  The SPLC reports that the LSU student plans to pursue the anonymous posters directly now that his claim against the newspaper has been dismissed.  Of course, federal and state law often stand in the way of such compelled disclosure as demonstrated by Independent Newspapers and other cases, including this one from Florida recognizing the application of the state reporter’s shield law to anonymous posters’ identities, IP addresses, and other identifying information.  

Another Brick in the Anonymous Poster Wall

A circuit court judge in Nashville, Tennessee recently added his voice to a growing chorus of judges holding that anonymous internet speakers have a First Amendment interest in remaining anonymous.  Like so many of the cases we have reported on, this one involved a defamation claim arising from anonymous commentary on a blog.

The Citizen Media Law Project has the full story, and , more importantly, a link to video of the actual hearing and the judge's oral ruling.


Maryland High Court Protects Anonymous Internet Speech

In a case we first reported upon in December, Maryland’s highest court ruled recently that anonymous posters to an Internet news web site were protected by the First Amendment from having their identities disclosed to a civil litigant.

Following on the heels of the Enterline case in the Middle District of Pennsylvania, the Maryland Court of Appeals adopted the five-part test articulated by a New Jersey appellate court in Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. App. Div. 2001) to balance the posters' First Amendment rights to speak anonymously and the right of the plaintiff to recover for a valid defamation claim.

This case, like so many in this arena, involved a defamation claim by the plaintiff against various anonymous posters to an Internet news web site (in this case a site run run by Independent Newspapers, Inc).  Plaintiff Zebulon Brodie asserted that the posters had defamed the restaurant run by Brodie, calling it, among other things, “dirty and unsanitary” and had defamed him personally by asserting that he had “deliberately burn[ed]” down a pre-Civil War home to develop news homes.

The Court of Appeals reversed a trial court order compelling Independent Newspapers to reveal the identity of the anonymous posters accused by the plaintiff.  The court actually reversed on the grounds that the plaintiff had not properly alleged a valid defamation claim against any of the defendants.  The record in the case showed that the complaint named three defendants who had commented on the pre-Civil War house, but those comments were not actually about the plaintiff.

The two posters who had commented on the restaurant had been sought in the subpoena but had not been named in the complaint, and the statute of limitations against them had run.  Thus, the court ruled, there was no valid defamation claim at all.

Nonetheless, the court spent the bulk of its opinion providing guidance to lower courts for dealing with similar subpoenas.

As a threshold matter, the court discussed at length what standard the plaintiff in a defamation case should have to meet to make out a valid claim for disclosure.  As the court pointed out, some courts have set the bar low, requiring only a “good faith basis” for the underlying defamation claim.  Others have been slightly more stringent, requiring that a plaintiff meet the motion to dismiss standard in order to get disclosure.  The most speech-protective test, adopted by the Delaware Supreme Court in 2005, would require the plaintiff to meet the summary judgment standard, meaning that to get the sought-after information the plaintiff must present facts sufficient to survive summary judgment.

The court in Maryland rejected all of those formulations, instead adopting the standard laid out in Dendrite.  Under this test, a trial court faced with a subpoena seeking the identity of an anonymous online speaker in a defamation claim should:

(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering  disclosure.

In requiring plaintiffs seeking disclosure to make a prima facie case for defamation, the Maryland court adopted a standard it felt was more stringent than the motion to dismiss, but less stringent than summary judgment.  This test, the court said, "most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks."

As these disputes become more common, and as more federal and state courts adopt the relatively speech-friendly balancing test from Dendrite to resolve them, we may be on the front edge of an emerging consensus. It remains to be seen, as we have discussed previously, whether the same standard will apply when the underlying matter is criminal or when the anonymous party is not a would-be defendant but rather a third-party witness.



N.C. Bill Aimed at Curbing Defamatory Internet Content

 A bill introduced this session in the North Carolina General Assembly would take the regulation of speech on the Internet in a troubling new direction.  Indeed, the negative response to Senate Bill 46, introduced by Senator Steve Goss, has spanned the political spectrum, ranging from North Carolina's Civitas Institute, which termed it the "bad bill of the week," to the BlueNC blog.  The bill has several components.

First, the bill would criminalize defamatory statement made over the Internet.  In particular, the bill declares it to be "unlawful for any person to communicate by transmission through an electronic medium any false, defamatory statement that is libelous or slanderous."  The offense would be punishable as a Class 2 misdemeanor and, notably, the State of North Carolina would have jurisdiction "if the transmission that constitutes the offense either originates in the State or is received or viewed in the State."  The bill defines "electronic medium" to include "the Internet and any computerized or electronic information service," including "a bulletin board, a network, an online service, electronic mail, a forum, a blog, or a news group."

Thus, as drafted, the bill would create a new class of criminal libel in North Carolina.  In response to criticism of this move -- particularly given that states have generally moved away from criminal libel statutes and those with criminal libel statutes on the books (such as North Carolina) generally have let them lie fallow -- Senator Goss apparently told local press outlets in North Carolina that the inclusion of criminal penalties in the bill was "an oversight."  There is a serious question whether the enforcement of criminal libel statutes would violate the First Amendment to the U.S. Constitution in the wake of the New York Times v. Sullivan and Garrison v. Louisiana cases.

Second, a particularly troubling aspect of the bill appears in subsection (e) of section 2.  It provides:

The person who administers or provides the facilities for the electronic medium involved in the alleged libel or slander shall not be held liable for the alleged libel or slander unless the person is guilty of negligence either in allowing the material to be placed in the electronic medium or in allowing the material to remain in the electronic medium after the person became aware that the material was false and defamatory.

This provision would make websites and web hosts liable for third-party content if they were found "negligent" in allowing a defamatory statement to be posted or to remain posted after a complaint or some other form of notice was received.  This effort to hold website operators responsible for third-party content runs headlong into Section 230 of the Communications Decency Act, a federal statute that expressly provides that websites and web hosts are not responsible for defamatory or most other actionable content (the prime exception being posts amounting to copyright violations) created by third-party users.  So long as the website operator -- or "interactive service provider" -- is not deemed an "information content provider" with respect to the statement at issue, the website operator cannot be treated as the publisher of the statement for liability purposes.

Congress passed Section 230 in an effort to encourage website operators to police content on their sites without running the risk of being held responsible for objectionable content they miss.  Senate Bill 46 would turn that approach on its head by creating an incentive for website operators not to learn about objectionable posts made to their blogs or message boards.  Because of this direct conflict with Section 230, this provision of Senate Bill 46 would be preempted and unenforceable under the Supremacy Clause, Article VI, Section 2, of the U.S. Constitution.

Third, Senate Bill 46 would make significant changes to North Carolina's retraction statute.  The second section of the bill would require a plaintiff seeking to bring a lawsuit in response to defamatory material conveyed through an electronic medium first to give notice to the person accused of making the statement and then to allow that person 5 days to correct the statement at issue and post an apology.  The request could be made through traditional means or "by placing the request at one of the locations in the electronic medium known . . . where the libelous or slanderous material was placed."  Once the person receives the notice, he or she must post the apology and correction within 10 days, to the extent possible, in the same location and for the same time period that the challenged statement was posted.

If a trier of fact concludes that the statement at issue was made in good faith, was due to an "honest mistake," was posted without the prior knowledge or approval of the person "who administers the facilities for the electronic medium," or, even if the post was made with approval of the administrator, there were "reasonable grounds for believing that the communications were true" and a timely correction and apology is posted in compliance with the statute, then the plaintiff would be limited in the lawsuit to recovery of his or her actual damages.

A final note worthy of mention is that the changes to the retraction statute and the proposed liability for negligent website operators "shall not apply to anonymous communications."  This provision creates a questionable incentive -- website operators would be protected from the section's liability so long they require users to post content anonymously, a move unlikely to inspire restraint among would-be Internet defamers.

In short, Senate Bill 46 as drafted is problematic in a number of ways.  It appears to run afoul of both Constitutional and federal law, and the incentives it would create would likely do little to accomplish the stated objectives of the bill's sponsors, namely to reduce defamatory content in emails, message board posts, and blogs.  Nevertheless, the introduction of Senate Bill 46 in North Carolina is a signal that state legislatures may become more active in attempting to curb what they view as the excesses of Internet speech.  Because many news organizations operate websites that allow users to post content, the news media across the country should be on the lookout for analogues to this bill in their own states.

Anonymous Web Site Commentary and the First Amendment

As we discussed here, courts across the country are now dealing with the question of how state shield laws apply to anonymous commentary on newspaper web sites.  Mirroring these cases is a series of cases approaching the issue from the perspective of the people doing the commenting.  More specifically, courts are addressing the question of whether anonymous commenters on web sites have a First Amendment right to remain anonymous and, if so, whether the web site hosts have standing to raise those First Amendment rights in countering efforts to compel the hosts to disclose the commenters' identities.

In a significant decision on this issue, a federal judge in the Middle Distrist of Pennsylvania ruled in early December that a newspaper moving to quash a subpoena seeking the identities of anonymous commenters on its web site had standing to assert the First Amendment claims of those commenters.  Enterline v. Pocono Med. Ctr., No. 3:08-cv-1934, (M.D. Pa. Dec. 11, 2008).

The underlying case involved a sexual harassment and retaliation claim asserted by Brenda Enterline, an employee of Pocono Medical Center.  In October, The Pocono Record published an article about the lawsuit, and, in response, several people with what seemed to be personal knowledge of the claims posted commentary anonymously on the paper's web site.  Enterline then subpoenaed the paper for the identities of those commenters.  The paper objected on the grounds that: (1) the information was protected by the First Amendment; (2) the information was protected by Pennsylvania's shield statute; and (3) the subpoena did not comply with Rule 45.  Because the court found in favor of the paper on its First Amendment argument, it did not address the second and third objections.

The bulk of the court's opinion explains why the newspaper has the standing required to assert the free-speech rights of the commenters.  In particular, the question for the court was whether the paper could invoke the doctrine of third-party standing in this case.  Under that doctrine, outlined in Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984), if a party that would normally have standing is prevented by "practical obstacles . . . from asserting rights on behalf of itself," a third party can do so if: (1) it can allege a sufficient injury-in-fact; and (2) it "can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal."  The court ruled that the commenters could not practically assert their own rights in this case without revealing their identities, and since they apparently worked for the defendant, such a disclosure could cost them their jobs.  The court also agreed with the newspaper's argument that the paper's web site fora would lose validity and readership if it was forced to reveal the commenters' identities, and that such a loss would result in decreased readership and advertising revenue.  This, the court said, was enough to satisfy the injury requirement.  None of the parties disputed that the paper would zealously advocate for the rights of the commenters.

With standing established, the court then addressed the core First Amendment question.  Citing Doe v. Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001), the court used a four-part analysis to decide whether the First Amendment rights of the commenters outweighed the plainitff's need for the information.  The court asked whether:

(1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3)the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.

The court in Enterline held that the plainitff had not made a sufficient case that the information sought was unavailable from any other source, especially since the commenters were employees of the medical center and could be identified through normal discovery.

Also in early December, Maryland's highest court heard arguments on whether the host of an online business discussion forum should be forced to reveal the identity of an anonymous commenter who the plaintiff company claims is liable for defamation.  This case presents virtually the same facts as the cases outlined in our earlier post -- the plaintiff in a defamation suit serves a subpoena on a third-party web site seeking the identity of anonymous commenters.

Appellant Independent Newspapers, Inc. asked the court to allow the web site to protect the identity of the commenters and to adopt a five-part test borrowed from a New Jersey appeals court's opinion in Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. App. Div. 2001).  Under that formulation, before requiring disclosure, a court should:

(1) provide notice to the potential defendant and an opportunity to defend her anonymity; (2) require the plaintiff to specify the statements that allegedly violate her rights; (3) review the complaint to ensure that it states a cause of action based on each statement and against each defendant; (4) require the plaintiff to produce evidence supporting each element of her claims; and (5) balance the equities, weighing the potential harm to the plaintiff from being unable to proceed against the harm to the defendant from losing her right to remain anonymous, in light of the strength of the plaintiff’s evidence of wrongdoing.

The Pennsylvania federal court indicated in its opinion in Enterline that its four-part test is "similar" to the New Jersey test suggested in the Maryland matter, but it appears that the federal test is actually borrowed from the typical reporter's shield statute and provides more protection to the commenters.  In particular, as in Enterline, the exhaustion requirement can be a significant hurdle for litigants to overcome.

Click here for a run-down by the Citizen Media Law Project of other states that have recognized the First Amendment right of Internet commenters to remain anonymous.


North Carolina Adopts Strict Test for Internet Jurisdiction

Jurisdiction is one of many issues that has become increasingly complicated in a world of web-based communications. Courts across the country have wrestled with the question of where a person who posts content on the Internet about another may be sued. Some litigants have argued that since the Internet may be accessed anywhere in the world, a person who places content on the Internet does so at the peril of being sued anywhere. Such approach would risk chilling Internet speech as bloggers and blog hosts may find themselves sued in far-flung locales, as potential plaintiffs troll the country shopping for the most favorable venue.

As a result, most courts have rejected this expansive view of Internet jurisdiction as inconsistent with the federal Constitution’s due process protections. In a decision issued June 17, 2008, the North Carolina Court of Appeals adopted the stricter test, one first articulated by the United States Court of Appeals for the Fourth Circuit, a federal court that is based in Richmond, Virginia and includes Maryland, West Virginia, Virginia, North Carolina and South Carolina. This recent case involved a Georgia resident who posted messages on an Internet bulletin board about a North Carolina resident and businessman. The North Carolina Court of Appeals ruled that this alone was insufficient to subject the out-of-state poster to the jurisdiction of North Carolina’s courts. The posts, which the plaintiff contended were false and defamatory, were made by a Georgia resident while in Georgia.

In reaching this decision, the North Carolina court applied the following test: did the defendant, through the Internet posts at issue, “manifest an intent to target and focus on North Carolina readers?” The court therefore rejected the plaintiff’s theory that the Georgia resident was subject to jurisdiction in North Carolina simply because he engaged in electronic activity accessible in North Carolina about a North Carolina resident that would affect the plaintiff’s reputation in North Carolina. Instead, something more than an Internet posting and accessibility in North Carolina is required—the plaintiff must show that the speaker targeted or focused upon a North Carolina audience. Because the plaintiff had not met this standard, the Court of Appeals affirmed the dismissal of the complaint.

This case is significant because it is an example of an appellate court continuing to grapple with adapting pre-Internet doctrines to an Internet-based world. With this decision, North Carolina joined other jurisdictions in holding that something more than a mere impact felt in North Carolina was required to subject an out-of-state Internet poster to jurisdiction here. What is the upshot for news directors in North Carolina? This decision affirms that you may be hailed to court in any state to which you direct your Internet content, which may or may not be coextensive with your broadcast radius. If you target readers outside your home state with your Internet content generally, or with a particular story or blog thread, you need to satisfy yourself that you do not face liability under that state’s law.