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Courts struggle over rights of outrageous bloggers
Pittsburgh Post-Gazette


March 26, 2010

A New York model is called "a skank" by an anonymous blogger, so she sues Google for the blogger's name.

A Maryland Dunkin' Donuts franchise is called "dirty" by another unnamed blogger, so its owner sues a newspaper website to unmask the critic.

As anonymous content proliferates across the Internet -- one 2006 study estimated that 55 percent of American bloggers post under pseudonyms -- so does the opportunity for robust debate, invective, insights, insults and lawsuits.

Just how easy should it be to silence John or Jane Doe holding forth about a school superintendent's cronyism, a company's illegal dumping of toxic waste -- or just claims that a neighbor is of dubious moral character? When is anonymous Internet speech a richly textured exchange of ideas full of nuance, and when is it trash talk?

In this new digital era, courts are struggling with an increasing number of legal actions against bloggers or the websites that post their comments, searching for ways to balance First Amendment free speech rights with the right to not have one's reputation trashed or privacy invaded online.

Most of these cases can't go anywhere unless the speaker is identified, and that's where the battle begins -- usually with a subpoena aimed at the website provider, says Sam Bayard, assistant director of the Citizen Media Law Project at Harvard University.

"If you don't get the poster's identity, you don't get to bring a lawsuit," Bayard said, noting that different Web providers have different policies -- some require names, other require just e-mail addresses, some require nothing at all -- from people who register on their site.

Under a 1996 telecommunications law, Web service providers do have protection from comments made by third-party posters, but some courts will require them to divulge those posters' identities if a strong enough case for defamation can be made by the plaintiff.

Since the Media Law Resource Center in New York began tracking data in 2004, 250 legal actions involving bloggers have been filed, although a handful of those date to the 1990s. Since April 2009, at least 50 cases involving anonymous bloggers have been added to the center's database, said spokesman David Heller.

While courts often are inclined to protect anonymous speech, "plaintiffs still win these cases all the time," said Paul Levy, a lawyer for Public Citizen, a consumer watchdog. Even before a complaint is filed, an Internet service provider will often divulge an identity without hesitation.

Depending on the state, two basic standards seem to be evolving: One standard requires that the plaintiff has to show that there is a strong legal case to be made for defamation. Another, stricter standard imposed by other courts adds a balancing test to measure the impact of disclosure on both sides.

While courts seek clarity, digital rights advocates fear those efforts may be complicated if Congress revises the 1996 Telecommunications Act, which protects Internet service providers from these kinds of suits.

"With the issue of Internet anonymity bubbling up in courts and legislatures across the country, a showdown between reputation, privacy and safety interests on the one hand, and the First Amendment rights of message posters and online service providers on the other, is inevitable," says Robert D. Richards, director of the Pennsylvania Center for the First Amendment at Penn State University.

That particular federal telecommunications law doesn't affect anonymous bloggers directly -- just the websites providing them with a venue -- and was designed to encourage participation on fledgling Internet sites on the principle that "people shouldn't be responsible for content provided by others," said Daniel Solove, a George Washington University law professor.

He believes, however, that the federal law providing blanket immunity is overly broad.

If an Internet service provider "has reason to know something is defamatory or invasive of privacy, then one shouldn't be immune," Solove said, noting that he believes bloggers should get the same protections as journalists.

But "courts have become overzealous in interpreting (the Telecommunications Act) and have expanded it beyond its intended purpose," he added.

Taming anonymous Internet speech may produce another law, however: the one of unintended consequences.

In the New York model case, Google initially refused to reveal the anonymous speaker who had referred to the model, Liskula Cohen, as "psychotic," and as a prostitute. In August, a New York State Supreme Court Justice ordered Google to release the blogger's name -- another model -- claiming that "the thrust of the blog is that (Cohen) is a sexually promiscuous woman."

That ruling, in turn, has triggered numerous suits against Google by people who feel they were "cyber-smeared," some lawyers claim. And two months later, hackers attacked the Manhattan Supreme Court website and Google -- in what experts said appeared to be retaliation for the search engine giving up the name of the blogger.



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