Defamation Law - Discovery - Maryland Court of Appeals Sets out Process Required before Court May Compel Identification of Anonymous Internet Defendants

Article excerpt


Anonymous speech has a long and important history in the United States. (1) The widespread availability of the internet and the common practice of using pseudonyms to post on websites and other internet fora have allowed anonymous speech to flourish in recent years. The frequency of anonymous postings has created an interesting problem in defamation jurisprudence as courts struggle to balance the First Amendment right to anonymous speech with the rights of plaintiffs who allege harm at the hands of anonymous posters. (2) Recently, in Independent Newspapers, Inc. v. Brodie, (3) the Maryland Court of Appeals adopted a five-step framework for trial courts to employ before issuing an order compelling the disclosure of identifying information about anonymous defendants in a defamation action. A plaintiff is first required to make a prima facie case for defamation and must then satisfy a balancing test that weighs the strength of her case against the defendant's right to anonymity. Yet First Amendment doctrine already includes balancing to protect the most important type of anonymous speech--speech regarding matters of public concern. Because the Brodie framework incorporates this protection in the prima facie case requirement, the final balancing test is unnecessary. The court's approach is also potentially overprotective of anonymous speech and may encourage more hurtful speech by decreasing accountability.

In May 2006, businessman Zebulon J. Brodie filed a defamation complaint in Maryland state court against Independent Newspapers, Inc. and three John Doe defendants known only by their usernames. (4) The complaint alleged that the John Doe defendants authored defamatory posts that were published on a web-based forum maintained by Independent Newspapers. (5) The posts commented negatively on local businesses maintained by Brodie and on his involvement in the development of a local farm property. (6) Independent Newspapers moved for dismissal or alternatively for summary judgment, (7) and it also requested a protective order that would shield the company from having to disclose the John Doe defendants' identities. (8) In November 2006, the trial court dismissed the claims against Independent Newspapers but denied the protective order. (9) On motion for reconsideration, Judge Ross noted that "the piety of the First Amendment requires ensuring that Plaintiff has stated a valid claim of defamation." (10) He then dismissed the cause of action related to the local farm property (11) but confirmed the order compelling disclosure of information that would identify the John Doe defendants who made negative comments about a Dunkin' Donuts owned by Brodie. (12) Brodie's attorney identified the authors of these comments as users employing the pseudonyms "RockyRacoonMD" and "Suze," (13) neither of whom had been named as a defendant in the initial complaint. (14) The final subpoena served to Independent Newspapers requested information that would identify these two posters as well as the three John Doe posters named in the initial suit, despite their lack of participation in the comments about the restaurant. (15) Independent Newspapers again moved for a protective order to preserve the anonymity of these posters, but the court denied the order in February 2008. (16)

The Maryland Court of Appeals reversed and remanded to the lower court with instructions to grant the protective order. (17) In a relatively short section of the majority opinion, Judge Battaglia (18) reasoned that while Brodie initially sued the three John Doe defendants, none had made the allegedly defamatory comments about Brodie's restaurant. Hence, no claim of defamation could lie against them. (19) Maryland's one-year statute of limitations for defamation claims barred a suit against the two posters who had actually made the actionable comments about Brodie's Dunkin' Donuts. …


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