Tuesday, April 6, 2010

Defamation and Online Anonymous Sources

Many of us find ourselves responding to articles, opinion makers and all kinds of material on-line. Who among us hasn't been tempted to write a nasty little response under our "on-line identity"? What if I end up defaming the writer, subject of the story to which I'm responding to on-line? Can an anonymous person be sued for defamation? How does the plaintiff know who to sue?

There are several state cases explaining how plaintiffs successfully uncovered the identity of the alleged defamers and proceeded to sue for defamation. One such caseThe Swartz v. Doe case can be used as an example of how this can be done.

Swartz v. Doe took place at a trial court in the state of Tennessee.

The Plaintiffs in this case, Donald and Terry Swartz, from Tennessee, worked with real estate sales and operations of recovery facilities for substance abusers. They sued the anonymous blogger who is obviously referenced as John Doe, for defamatory statements made on his blog titled, “Stop Swartz” that called Swartz an arsonist and said he was exploiting the recovering addicts.

Judge Brothers was the presiding Judge who used the standard court case, Dendrite International v. Doe (as most judges do in anonymous online defamation cases) as a precedent for his decision. Under this standard, there are four things the Plaintiff must do. 1) The Plaintiff must notify the unidentified blogger that he or she is the subject of a discovery procedure 2) and give the blogger a reasonable amount of time to oppose the discovery 3) The Plaintiff must identify the specific statement or statements made by the blogger that gives rights to the Plaintiffs claim 4) make a “prima facia” or substantial showing for each element of each cause of action (prima facia is a Latin expression that means “on its first appearance” and therefore is used to signify that on the first examination, something appears to be self evident from the facts)

If the Plaintiff can provide meet the burden noted above, the court then must balance the defendant's “right of anonymous free speech against the strength of the plaintiff's case and the legal necessity for the disclosure.” (www.law.com) In this case, the court decided that the Plaintiff made substantial legal and factual showing and was entitled to the blogger’s identity.

One important thing to remember is that anonymous speech on the Internet is not absolutely protected and just because it is an opinion, it does not mean you cannot be held accountable for defamation.

Swartz gave adequate notice by serving a subpoena to Google and Google had given a notice to Doe and Doe filed a motion to quash and because the Plaintiffs had not taken any more action toward Doe for a few months, the court determined that the Defendant had “ample time to respond.” The Plaintiffs had also identified the specific statements that they believed were defamatory and supplied an affidavit stating that the defamatory statements were false and had damaged them and therefore, they were granted permission to know the identity of the blogger.

Sources: http://www.digitalmedialawyerblog.com/2009/11/swartz_v_doe_tennessee_ruling.html

Ashley Huber

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