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Defamation Suits Against Anonymous Bloggers

The Delaware Supreme Court ruled in Doe v. Cahill that “before a defamation plaintiff can obtain the identity of an anonymous [blogger from the blogger’s ISP] through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.” In other words, the plaintiff “must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question” before being allowed to discover the identity of the blogger in question. At the time, I wrote:

I don’t claim to be a First Amendment expert, but it looks to me like the Delaware court did a very good job in this case

Now comes Law Professor Betsy Malloy with a different perspective:

As more and more people create personal websites and blogs, courts are more frequently asked to rule on questions related to the Internet boom. Specifically, an issue has arisen concerning what standard to apply in defamation suits brought against anonymous bloggers. Courts have wrestled with producing an appropriate standard for revealing the identity of an anonymous blogger who posts allegedly defamatory material on a message board or website. Recently, in Doe v. Cahill, the Delaware Supreme Court created a strict standard that makes it extremely difficult for defamation victims to bring suit against anonymous bloggers. The standard created is far too sympathetic to anonymous bloggers and fails to address important issues facing victims of defamation.

It is important not to silence communication on the Internet, but it is just as important not to silence victims of defamation. Therefore, this comment argues for the protection of libel plaintiffs facing defamatory comments from anonymous bloggers.

As a normative matter, I still agree with the Delaware court 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. A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics.

Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, “[t]he sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money.” “The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him.” This “sue first, ask questions later” approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked.

Having said that, this is a very important legal issue for the blogosphere and Malloy’s careful analysis deserves thoughtful consideration.