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There has been a lot of anxiety about the ease with with web sites can invite vicious, defamatory comments, and allow the people making the comments to remain completely anonymous. If the speaker is the person who controls the site, he or she can be sued. But what about the anonymous contributors? Do their free speech rights trump the rights of the maligned parties to seek compensation for the damage these comments do to them? Should the site operators be required to disclose the IP addresses from which the comments were posted, or other identifying information the operators may possess?

A decision by the Maryland Court of Appeals sets a very high bar for breaking through the anonymity and compelling the site to disclose the identity of the commenters. It’s a standard that could be reached, but it is going to be awfully hard. Here is what the plaintiff has to do:

1. Notify the anonymous poster that the poster is the object of a subpoena (by, for example, posting a message on the same site).
2. Identify to the court the exact statements made by the anonymous poster
3. Show in what way each statement caused damage to the plaintiff.
4. Provide specific information to support each claim.

At that point, the judges need not order the disclosure. First they need balance the damage done to the plaintiff by the anonymous speech against the anonymous defendant’s First Amendment rights.

The decision matches a standard set in 2002 by a New Jersey court, and seems to be part of a pattern in which courts are giving great deference to the right to anonymous speech on the Web.

This entry was posted on Sunday, March 1st, 2009 at 10:34 pm and is filed under Privacy, The role of government—laws and regulations. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.