Magazine article Editor & Publisher

Courting Blogs: Legal Cases Are a Mixed Bag

Magazine article Editor & Publisher

Courting Blogs: Legal Cases Are a Mixed Bag

Article excerpt

An increasingly significant legal question has emerged: Does Section 230 (see our main story) protect online publishers from revealing the names of any of the many anonymous third-party posters who are filling the blog pipelines at mainstream newspapers and elsewhere?

As in many other aspects of blog law, the prevailing opinion is that Section 230 strongly rises to the defense. In one of the most notable legal cases involving a newspaper -- John Doe 1 v. Cahill in Delaware -- the Supreme Court there ruled that online publishers did not have to reveal the names of third-party posters.

Last fall, that court reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who verbally attacked a local elected official. Those justices said that a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog operated by Independent Newspapers Inc., publisher of the Delaware State News.

In invoking "heightened standards" of protection for the anonymous blogger, Chief Justice Myron Steele declared that the Internet was a "unique democratizing medium unlike anything that has come before." Added Steele: "We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."

Specifically, under the standards adopted by the Delaware Supreme Court, a plaintiff must first try to notify the anonymous poster that he is the subject of a subpoena or request for a court to reveal his identity.

Further, the poster should be allowed time to oppose the request. The plaintiff at that point would have to present prima-facie evidence of defamation strong enough to overcome a summary judgment motion.

David Finger, a Wilmington, Del., attorney whose practice includes First Amendment/media law work for such clients as Copley Press Inc., Reuters, and The Philadelphia Inquirer (he also represented Doe 1 in the Cahill case) points out that the Delaware Supreme Court is a high-profile court because of all the corporate law that is handled in the state. …

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