Banking, Business, Litigation, Real Estate

Publication: Online Anonymity

Publication

Online Anonymity

Posting comments online–whether on news websites or blogs–may not be as anonymous as you might hope or expect. Recently a Pennsylvania appeals court explained when a judge can order disclosure of the identities of individuals who posted anonymous comments on a news website.

A website owner had created an independent website that regularly published news and articles critical of local government. Readers were invited and encouraged to register as members of the site. Registered members could create unique usernames and post comments under those names. Only registered members could post comments to the site, and they typically posted using pseudonyms rather than their real names. The website owner had control of a database that included the email addresses and names given by the people who registered on the site.

The case started when the website owner sued a former city council president, claiming that the former council president had defamed him on a political website and made terroristic and death threats against him. In response, the former council president countersued, claiming that the website owner had regularly published numerous defamatory statements about her that had injured her reputation and caused her personal humiliation, political harm, and embarrassment.

The former council president named nearly 100 additional defendants in her suit, all identified simply as John Doe, all of whom were anonymous posters on the website owner’s website. Simultaneously with the filing of her countersuit, the former council president also filed a petition to compel the website owner to immediately disclose all the names of his website members, identifying each by real name, email address, and pseudonym.

The trial court first ordered the website owner to preserve all his data about the website members, pending a full hearing. The judge then ordered the former council president to narrow her request by specifically identifying the particular posted messages that she claimed had defamed her. He also ordered the website owner to promptly forward the court filings to all the registered members on the website by email so that all the individual posters would have notice of the pending proceedings.

Once the former council president had identified the particular postings that she claimed were defamatory, the judge issued a court order requiring each website member involved in those limited posts to file a written objection to the disclosure within 30 days of receiving the court papers from the website owner by email.

After further proceedings, the trial court ordered the website owner to disclose the names and identities of some of the anonymous message posters. The trial judge recognized that the First Amendment protects the right to speak anonymously but noted that an individual’s right to protect his or her own good name is also constitutionally protected. Defamation law, the judge said, “reflects no more than our basic concept of the essential dignity and worth of every human being–a concept at the root of any decent system of ordered liberty.”

The trial judge also observed that the U.S. Supreme Court has extended defamation liability to Internet communications. The Supreme Court has said that through the Internet anyone “can become the town crier with a voice that resonates farther than it could from any soapbox.”

On appeal, because disclosure of anonymous posters’ identities had not yet been addressed by any Pennsylvania appeals court, the appeals court returned the case to the trial judge with specific directions. The appeals court created a four-factor test that Pennsylvania trial judges should henceforward apply in all similar cases.

First, the court noted that anonymous posters are entitled to receive notice of the case and to have an opportunity to object to the disclosure of their identities before the decision about disclosure is made.

Second, disclosure as to particular posters should be ordered only if their particular posted messages appear to be defamatory.

Third, the party seeking disclosure must sign a sworn statement that the information is essential to his or her case and is otherwise unavailable.

Fourth, the trial judge must balance the interests of all parties. Balancing the parties’ interests focuses on how defamatory the posted comments were, how many comments were posted, and how likely it is that the party seeking disclosure will prevail in the case. The trial judge must also consider that comments about matters of public importance or critical of public officials are entitled to heightened protection from disclosure because public comment on public issues is entitled to “robust protection” under the First Amendment.

The appeals court declared that because debate on public and political matters “may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials,” trial judges must tolerate spirited public comments. Comments online directed to private persons and private matters warrant less tolerance in the analysis of whether the content of the comment is defamatory.

If you post comments on any websites or blogs using a pseudonym, you can’t be confident that your identity will remain private. Be careful to tone down your rhetoric when commenting on private people or events. But while political speech is more protected than comments on private matters are, even political postings can lead to the disclosure of your identity if a trial judge finds disclosure to be fair.

Methods exist to trace your posting to your home or office computer even if you register on the website under a false name. Using a workplace computer to post defamatory comments can lead to workplace sanctions or even termination.