Posted September 14, 2009 4:01 pm by with 4 comments

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The status of Internet anonymity continues to evolve in the courts. The most recent example is the “skank” blogger who was sued for libel. Although the blogger tried to play off the comments as “trash talk” and opinion (and to remain anonymous), the court ruled that Google must disclose her identity (and she’s ticked that the woman she said was “whoring” and a “skank” would put her out there for public judgment).

Another case also saw an anonymous commenter unmasked, this time from a comment on The Journal News website. A former congressman in NY, Richard Ottinger, was expanding his house, and there were concerns in the city that their application and permits were receiving special treatment. On a local news article covering this, a commenter claimed that their permits were illegal—and the Ottingers filed suit and got the Journal News to disclose his identity.

But this time, after the courts ordered the website to disclose the identity of the commenter, the case was thrown out. So now this commenter—a neighbor of the Ottingers who made multiple comments under different IDs—is known to the Ottingers, and they don’t have legal recourse.

Great job coordinating there, NY courts. The first judge ruled the case had merit enough to unmask the commenter, but another judge said that the anti-strategic law against public participation regulations in the state actually protected the comments. But that’s too little, too late for the anonymity of the commenter.

MediaPost reports that this might be a perfectly fine, legal order of things:

That [anti-SLAPP] law says that people can’t recover for damages libel when the allegedly defamatory statements involve matters of public interest unless the speakers have “actual malice” — defined as knowing the statements are false or recklessly disregarding the statements’ falsity.

First Amendment lawyer Sam Bayard, assistant director of the Citizen Media Law Project, says that the dismissal isn’t necessarily inconsistent with the earlier finding that the Ottingers had presented sufficient facts to prove libel. That’s because, in some circumstances, litigants are not in a position to prove that a speaker acted with actual malice without knowing the person’s identity.

I guess the logic here goes that the commenter wasn’t a real estate lawyer, so he couldn’t be qualified to know that his statements weren’t true—but then, when commenting anonymously on the Internet, no one else who reads the public comment knows he isn’t qualified to comment, or whether he knows what he’s saying is true.

The $1.5M libel case isn’t hanging over the commenter’s head, but you can bet neighborhood relations aren’t quite the same now.

What do you think? Should the full challenges to a case come before disclosing the identity of anonymous commenters and bloggers?

  • So I actually think commenting anonymously is a dumb thing to do as a general policy – for the sake of my own online reputation, professional and personal, I’d much rather stand or fall under my own name than be outed for any reason. BUT – not everyone is an online marketer like me. Not all online marketers even agree with me anyway.

    That said, I think that since you can’t shut Pandora’s box again and re-conceal someone’s identity, cases like this need to be fully developed (or whatever the legal term is) before an irreversible decision is made.
    .-= Cara deBeer´s last blog ..Oops =-.

  • I think what they’d have to do is disclose the identity of the blogger or commenter to the judge, and then the judge would rule whether that person could have actual malice, and then disclose the identity to the plaintiffs—or not, if the libel case has no merit.

    (Oh, the legal term for opening Pandora’s box is “you can’t unring the bell.” I’m only half kidding.)

  • I think it needs a full challenge. Otherwise our law will not recognize the degree of damage it can cause. You know how the system works. 🙂
    .-= Walter´s last blog ..Deciding point: conquering limitations =-.

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