Perils of the Internet: A Perspective from the USA
From Ad IDEM / CMLA
Prepared by Jane E. Kirtley, Silha Professor of Media Ethics and Law
School of Journalism and Mass Communication
University of Minnesota
Minneapolis, MN 55455
612 625 9038
Libel Tourism
New York Governor David Paterson signed a bill on April 30, 2008 that grants protection to writers and publishers convicted of libel in foreign courts. The Libel Terrorism Protection Act amends New York’s statute pertaining to foreign money judgments, to read: “A foreign country judgment is not conclusive if . . . the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless the court before which the matter is brought sitting in this state first determines that the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions.” N.Y. C.P.L.R. §5304. It also extends personal jurisdiction to any person who obtains a foreign judgment against a New York resident or one who is amenable to New York jurisdiction for the purpose of rendering declaratory relief. N.Y. C.P.L.R. §302.
In May, Sens. Joseph Lieberman, Arlen Specter and Peter King introduced the Free Speech Protection Act bill, which would extend similar libel protection throughout the United States, authorizing federal courts to bar enforcement of foreign judgments unless the underlying states would be defamatory under U.S. law. H.R. 5814 and S. 2977 are presently in committee.
Anonymous Speech
The First Amendment right to anonymous speech has long been recognized in the United States. Anonymity on the Internet, however, continues to raise a variety of legal questions.
A. Unmasking anonymous posters in libel cases
Internet service providers can be subpoenaed to be forced to reveal the identity of their clients who have allegedly posted tortious material online. As discussed in previous outlines, courts have formulated a variety of tests:
1. The “good faith” standard, In re Subpoena Duces Tecum to America Online, Inc.. 52 Va. Cir. 26 (2000).
2. The “motion to dismiss” standard, Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999).
3. The “summary judgment” standard, Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005).
4. The “Dendrite” standard, Dendrite Int’l v. Doe, 775 A.3d 756 (N.J. Super Ct. 2001).
The summary judgment standard requires the plaintiff to: Take steps to notify the anonymous poster that (s)he is the subject of a subpoena;
Afford the poster a reasonable opportunity to oppose the subpoena; and
Provide prima facie evidence sufficient to defeat a summary judgment motion.
The “Dendrite” standard adds a fourth test:
Determine whether the poster’s First Amendment rights outweigh the prima facie case presented and the plaintiff’s need to obtain the identity in order to succeed in the suit.
Courts in New York and Connecticut applied the “Dendrite” test in 2008, ordering disclosure in both cases.
Ottinger v. Non-Party the Journal News, 2008 N.Y. Misc. LEXIS 4579 (N.Y. Sup. Ct. June 27, 2008): Court ordered a newspaper to disclose identifying information for anonymous posters who had placed defamatory statements about the plaintiffs on a blog hosted by it. The court found that although the plaintiffs had to plead a prima facie case, they did not have to produce evidence of “actual malice.” Doe v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008): Court concluded that two Yale law students who complained that defamatory statements had been posted about them on the AutoAdmit.com web site had established a prima facie case of libel, ordering AT&T (which hosted the site) to identify one of the posters, holding that the plaintiffs’ interest in discovery outweighed the poster’s interest in remaining anonymous.
See also Krinsky v. Doe 6, 159 Cal. App.4th 1154 (2008), holding that it is “unnecessary and potentially confusing to attach a procedural label, whether summary judgment or motion to dismiss, to the showing required of a plaintiff seeking the identity of an anonymous speaker on the Internet.” Notice should be given to the anonymous defendant (though this was irrelevant in this case, because the defendant had already moved to quash), and the plaintiff should be required to make the requisite prima facie showing.
B. Unmasking anonymous posters in privacy cases
In late September, Aerosmith singer Steven Tyler filed a lawsuit in California against anonymous bloggers who he claims impersonated him and his girlfriend on their Blogspot blogs. The lawsuit alleges false light invasion of privacy, publication of private facts, and misappropriation of his likeness. He seeks monetary damages as well as an injunction to stop the defendants from further misappropriating his name or likeness. http://www.citmedialaw.org/blog/2008/aerosmiths-steven-tyler-sues-cyber-impersonators
It is worth noting that the false light tort is not recognized in all states. On October 23, 2008, the Florida Supreme Court declined to recognize the tort in a case where a Jewish woman sued the organization Jews for Jesus after her stepson published an article which she claimed falsely depicted her as either a member of the group or a believer in its tenets. Jews for Jesus v. Rapp, 2008 WL 4659374 (Fla. Oct. 23, 2008).
The court wrote that, “Because the benefit of recognizing the tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech, we decline to recognize a cause of action for false light invasion of privacy.”
However, the opinion also reaffirmed that libel by implication is recognized in Florida, noting that “if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.”
The same day, the court also upheld a lower court ruling which reversed an $18.28 million false light invasion of privacy verdict in a case brought by businessman Joe Anderson against the Pensacola News-Journal (Gannett Co., Inc. v. Anderson), reported in a previous Ad Idem outline. Anderson had claimed that an accurate story recounting how Anderson accidently shot and killed his wife while deer hunting falsely implied that he murdered her. Although Anderson had originally also sued for defamation, his suit was time-barred after the shorter two-year statute of limitations for libel had expired.
C. Invoking state shield laws to protect anonymous posters
Several recent decisions have considered whether state shield laws may be invoked to protect the identity of anonymous posters.
1. Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (2008): a corporate executive subpoenaed an internet service provider to obtain the identity of ten pseudonymous posters who she claimed had defamed her, argued that the viability of the subpoena should be based on the state Supreme Court’s ruling in Mitchell v. Superior Court, 37 Ca.3d 268 (1984), which established a five-part test to determine whether a journalist could be compelled to reveal confidential information.
The court rejected using Mitchell, as well as more recent decisions including O’Grady v. Superior Court, 139 Cal.App.4th 1423 (2006) and Rancho Publications v. Superior Court, 68 Cal.App.4th 1538 (1999), as inapplicable to the facts of this case. “We are not confronted with issues involving freedom of the press, the confidentiality of news sources, or the public confidence in media publications. The interrelated factors that define the scope of that privilege are of limited relevance here,” adding that “the protected interests asserted in the motion are not those of a third-party host or news medium but those of the anonymous speaker himself.”
2. In Oregon, a state trial judge ruled in late September that the state shield law protected the identity of an anonymous commenter who posted defamatory statements on the web sites of the Portland Mercury and Willamette Week. The court relied on the portion of the statute that protects “any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public.” Under the statute, “information” is defined as “any written, oral, pictorial or electronically recorded news or other data.” Or. Rev. Stat. §§ 44.510-44.540. The court concluded that the poster’s IP address constituted “data,” and denied the motion to compel production. Beard v. The Portland Mercury, http://www.citmedialaw.org/threats/beard-v-portland-mercury
3. In Montana, a trial judge ruled in early September that the state shield law, which protects not only news organizations but “any person connected with or employed by [one] for the purpose of gathering, writing, editing or disseminating news” also protected the identity of an anonymous commenter who posted on the Billings Gazette web site. http://www.rcfp.org/newsitems/index.php?i=6964
4. The Alton Telegraph in Illinois argued in early September that the state shield law must protect it from compelled disclosure of the identities of anonymous posters to its web site to a state grand jury. It contends that “in the digital age a newspaper or reporter receiving information in this fashion is no different from anonymous tips provided to newspaper reporters telephonically or in written form.” http://www.rcfp.org/newsitems/index.php?i=7086
D. Shield law update
In 2008, two states have enacted new shield laws (Hawaii and Maine), and a third has extended protection under a court rule.
As always, the question is: who is covered?
Hawaii’s law (Haw. Rev. Stat. Ann. § 621-x (2008) covers those engaged in newsgathering for both traditional as well as those working for non-traditional media, as long as they can show that they engage in work “materially similar or identical to that of a journalist or newscaster.” It grants an absolute privilege for confidential sources and unpublished information in civil cases (except defamation) and in criminal misdemeanor cases, and a qualified privilege in other situations.
Maine’s law (Me. Rev. Stat. Ann. Tit. 16, § 61 (2008) covers “any person or entity professionally or regularly engaged in gathering, preparing, collecting, writing, editing, filming, taping, photographing, or disseminating written, oral, pictorial, photographic or electronically recorded information or data concerning matters of public concern.” It provides a qualified privilege for confidential sources and information, using a standard three-part balancing test.
In addition, Utah’s Supreme Court adopted a new provision to the state Evidence Code (Rule 509) to create an absolute privilege for confidential source identity unless disclosure is necessary to prevent substantial injury or death. The standard for non-confidential information is a balancing test: need for the information that substantially must outweigh the interest of a continued free flow of information to the reporter.
The Federal Free Flow of Information Act, which passed the House of Representatives in October 2007, had still not reached the Senate as of the August 2008 recess. HR 2102 (House) and S. 2035 (Senate). Both bills provide numerous exceptions. Barack Obama was a co-sponsor of the Senate bill. John McCain told the Associated Press in April that “despite concerns I have about the legislation, I have narrowly decided to support it.”
E. The Global Online Freedom Act of 2007, designed to “promote freedom of expression on the Internet” and to “protect United States businesses from coercion to participate in repression by authoritarian governments” (by imposing civil penalties of up to $2 million for businesses or $100,000 for individuals if they reveal the identity of anonymous posters in countries that censor the internet), was reported out of committee in October 2007, which recommended that it be considered by the House as a whole. Although it has been calendared for business, it has not yet been considered, despite efforts by Rep. Christopher Smith to move the bill to the House floor before the Beijing Olympics. (H.R. 275)
