Jeremy Eggleton

Commenters, publishers in legal wild west

By Jeremy Eggleton
June 27, 2010

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AMONG THE great successes of the Internet is freedom of speech. No longer is the voice of the individual subject to the constraints and prohibitions of traditional arbiters — editors, publishers, producers. Today, the tap on an iPhone in Berkeley can start a conversation in Boston; never has the “marketplace of ideas’’ been so close to realization.

For those stirred by this revolution, the venomous words that pollute online comment sections must be a grave disappointment. Click on any comment section, and invariably one finds name-calling and hateful diatribes posted by commenters shielded by anonymity. But what of online comments that are not just unpleasant, but the stuff of a lawsuit — toxic falsehoods that malign an individual or business?

An Internet publisher can’t meaningfully control what users publish on its website. That is why Congress declared in 1996 that website publishers may not be held liable for third-party comments on their websites, even if the commenters themselves can be brought to account.

Yet there’s the rub. Without the threat of liability for publishers, ruinous speech proliferates, giving rise to a thicket of vexing legal problems: How does someone protect her reputation from the libelous words of an anonymous poster? How do we preserve the ability of newspapers and website operators to cultivate an active, engaged readership without having to fear being dragged into court by plaintiffs to unmask anonymous posters? How do we prevent the threat of frivolous lawsuits from chilling worthwhile speech?

These questions illustrate, as retired Supreme Court Justice David Souter put it recently at Harvard’s commencement, “the desire of the American people, like most people, to have it both ways.’’ In the case of online comments, on the one hand, there is the freedom of speech, and the freedom to speak anonymously — the DNA of a republican democracy; on the other, the fundamental common law principle that you have a right not to be libeled and if you are, then you have a remedy against someone who libels you.

American law is starting to find the balance between these competing interests. Recently, the New Hampshire Supreme Court became only the third high court to craft a test for courts to apply when asked to determine when a plaintiff’s right of redress for alleged libel trumps a speaker’s right to remain anonymous.

Previously, all a disgruntled person had to do was file a libel lawsuit in order to obtain a court order requiring a website to disclose the identity of an anonymous poster. This low bar made it easy for corporations and individuals to identify their critics even when there was no real chance that they would prevail in their libel claim, or only intended their suit to intimidate. With its ruling in The Mortgage Specialists v. Implode-Explode Heavy Industries, Inc., the case of a crusading website that tracks the tribulations of the mortgage industry, the New Hampshire Supreme Court placed a significant burden on the plaintiff, a mortgage company —requiring it to prove the elements of its claim before the speaker’s identity could be disclosed. Even if that requirement is met, the court then has to ask itself whether the need for the speaker’s identity truly outweighs the public interest in promoting anonymous speech. With this ruling, a plaintiff with a valid claim can still enforce his rights, but a plaintiff without a truly legitimate claim cannot infringe on a person’s sacred right to speak anonymously.

Massachusetts’ high court has not had the occasion to adopt such a test, leaving courts, plaintiffs, website publishers, and — most importantly — bloggers and anonymous commenters, without an established road map for how to enforce, defend, and adjudicate their rights.

Until it does, hopefully the New Hampshire Supreme Court ruling will inform and persuade courts in the Commonwealth and elsewhere as they consider demands for the identities of anonymous sources. The policies and reasons that animated that ruling provide guidance for the denizens of the new media landscape, protect anonymous speech, and assure that those harmed by speech on the Internet can obtain the relief they deserve.

Jeremy Eggleton, an attorney at Orr & Reno in Concord, N.H., represented before the New Hampshire Supreme Court.

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