Court Upholds Blogger’s Right to Anonymity

In a case seen boosting the credibility and profile of blogs as sources of news and opinion, the Delaware Supreme Court this week found that four bloggers accused of defamation had the right to remain anonymous.

The court ruled that a lower court was wrong in ordering an Internet service provider to disclose the identity of anonymous bloggers who used a local newspaper’s public blogging area to criticize a local elected official. The court said that the official, Patrick Cahill, should have been required to provide more evidence that he had suffered damage from defamation before ordering the bloggers’ identities be revealed.

The ruling is getting attention because it may represent the first time a state’s high court weighed in on blogger’s rights to privacy and because the decision is seeing raising the level of blogs to more legitimate status. In the past, courts have been unwilling to protect the identities of message board posters and others who had been accused of misconduct.

Of the four bloggers targeted by Cahill, one decided to appeal an initial ruling. He is referred to in court documents only as John Doe No. 1 and by his blog name, “Proud Citizen.”

His attorney, David Finger, said the decision represented protection for all anonymous bloggers “from lawsuits which have little or no merit and are filed solely to intimidate the speaker or suppress the speech.”

First Amendment Applies

Cahill, an elected member of the Smyrna, Delaware city council who had feuded publicly with the city’s mayor, initially sued over the content of several of the postings, which included veiled references to his sexuality and suggested he suffered from “obvious mental deterioration.”

In the ruling, Chief Justice Myron Steele said that blogs are more often than not written as opinion and are recognized as such by readers.

“Given the context, no reasonable person could have interpreted these statements as being anything other than opinion,” he wrote. “The statements are, therefore, incapable of a defamatory meaning.”

Steele also called the Internet as a “unique democratizing medium unlike anything that has come before,” and went as far as to liken anonymous writings in blogs and chat rooms to political pamphleteering, which helped jumpstart the American Revolution.

The court left open the possibility of a blogger having to be identified, but only after the aggrieved party has shown substantial evidence they’ve been harmed.

“We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously,” Steele wrote. “The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all.”

Decision Hailed, Hit

With the ruling, the court lent credence to bloggers’ comments by affording them a similar level of protection that credentialed reporters receive from libel suits, in which the burden of proof is on the allegedly defamed person to prove they were harmed and, in the case of public figures, that the writer had reason to believe the information was wrong before it was published.

Online rights groups, several of which worked with the anonymous blogger on the case, were quick to hail it as a milestone.

“Bloggers have a strong First Amendment right to speak anonymously,” said Kurt Opsahl, staff attorney at the Electronic Frontier Foundation (EFF). “It is critical that plaintiffs’ claims face a stringent test before a court unmasks online critics, lest we reduce the vibrant public debates on the Internet to the cautious views of a select few voices.”

But others noted that states often ignore the precedent set by other state’s supreme courts, preferring to wait for a U.S. Supreme Court ruling for guidance.

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