(Delaware)High court to hear blog suit

Delaware State News ^ | August 12, 2005 | Drew Volturo

[Gabz]

High court to hear blog suit; Smyrna councilman claims anonymous defamation

By Drew Volturo, Delaware State News DOVER — A lawsuit seeking to identify anonymous posters to an Internet Web log will be decided in the Delaware Supreme Court, a case some say could set precedents for free speech online.

The case, filed last year by Smyrna Town Councilman Patrick J. Cahill and his wife Julia, alleges that four anonymous posters to a community issues blog "defamed" the councilman and his wife in late 2004.

Blogs are electronic public forums that allow residents to post their ideas, opinions and comments on a variety of issues, becoming a new arena of community commentary.

Many of those who post on blogs remain anonymous or use nicknames to identify themselves.

Although blogs and bloggers are new to the lexicon, the concept of free and anonymous speech is not, said Drewery Fennell, executive director of the Delaware American Civil Liberties Union.

"Part of our whole system of commentary on government has always had a place for anonymous speech," Ms. Fennell said.

"During Revolutionary War times, many of the writers of pamphlets (advocating revolution) were anonymous."

The suit seeks to unmask the four posters, identified only as "John Does" and by their blog nicknames.

One of the Does — identified as John Doe No. 1 or Proud Citizen — filed for a protective order to block his or her identity from being revealed.

New Castle County Superior Court Judge Joseph R. Slights III denied the protective order request June 14.

While anonymity on the Internet is essential for a free exchange of ideas, Judge Slights said there is a difference between exchanging ideas and "using it as a cover to defame others."

The defendant has appealed the decision to the state Supreme Court, which the Doe's attorney said is of great importance.

"This may be the first time the highest court in any state has decided this type of case," John Doe No. 1's attorney David L. Finger said in a recent interview.

"The important issue here is the First Amendment right to speak anonymously without fear of retribution.

"In this case, the anonymous speech is centered on the fitness and health of an elected official."

The suit will be argued before the state Supreme Court Aug. 24 in Dover.

"There are a number of appellant rulings in other jurisdictions or in federal court," said Paul Levy, an attorney for Washington D.C.-based Public Citizen, a group that defends First Amendment rights on the Internet.

"However, if the (Delaware) Supreme Court fully addresses this issue and determines what the appropriate standard is in the situation, it will have been the first Supreme Court to fully weigh in on this issue.

"This is a very significant case."

The complaint

In September 2004, the defendant wrote about Mr. Cahill on the Smyrna-Clayton Issues Blog, a public forum for residents to write about issues facing their local community.

"Anyone who has spent any amount of time with Cahill would be keenly aware of such character flaws, not to mention an obvious mental deterioration," the poster wrote, according to the lawsuit.

The Doe also referred to Mr. Cahill as "Gahill," which the councilman said could lead people to believe his is having an extramarital, homosexual affair.

In the opening brief to the Supreme Court, Mr. Finger wrote that the First Amendment "strongly disfavors defamation suits brought by public officials."

"Mr. Cahill is subject to a much tougher standard as a public official in a defamation suit," Mr. Finger told the Delaware State News.

Wilmington attorney Robert Katzenstein is representing Mr. and Mrs. Cahill in the case.

"The First Amendment doesn't give someone the right to say something defamatory to someone else," Mr. Katzenstein said in a recent interview.

"The anonymity of the Internet should not give people licenses to defame people without facing legal consequences of defamation."

Joining the case

The state ACLU and two other free speech groups, Public Citizen and Electronic Frontier Foundation, have joined the case in order to submit briefs and oral arguments as interested parties.

"One of the important things about the Internet is that even someone who doesn't have access to a printing press can bring criticisms of public officials to others," Mr. Levy said.

"It's a leveling of the playing field.

"John Doe No. 1 seems to have been making opinion-based comments rather than false statements of fact."

Ms. Fennell said the ACLU believes the standard for revealing an anonymous speaker should be "very high."

"Slander and libel laws are tougher for public figures," she said. "You have to prove actual malice.

"In some ways, this is uncharted territory, and in others, this type of anonymous speech has been around since people were scrawling on cave walls."

Post comments on this issue at newsblog.info/0405.

Staff writer Drew Volturo

can be reached at 741-8296

or dvolturo@newszap.com.

[jan in Colorado]

Thank you Gabz!

[Gabz]

Not a problem. I lived not far from there for many years and so still read the papers.

I felt the subject of the lawsuit, as opposed to the politics involved, would be of interest to many here.

[Gondring]

Isn't Cahill a pretty big name in DE?

[Gabz]

My husband says he is familiar with the name, but I'm not.....but not this particular one.

[Gabz]

I remembered you asking for updates on th case. I'm looking for a postable article, but here is one.......

Smyrna official's suit causes stir
Case to reveal identity of blogger accused of defamation has potential to set national precedent for Internet age

I will ping you both if I find one I can post.

[BillM]

Since anyone can log in to any blog as a user, how can the true identity of a poster be known? There are no witnesses, no fingerprints, no handwriting, so no hard proof. We all know from scammers that passwords and ID's can be scammed. Even the pentagon has been regularly scammed.

How could any case be won in the absence of at least reasonable doubt?

[Boundless]

> Since anyone can log in to any blog as a user, how can
> the true identity of a poster be known? There are no
> witnesses, no fingerprints, no handwriting, so no hard
> proof. We all know from scammers that passwords and
> ID's can be scammed.

There are IP traffic logs on the forum's servers, as
well as at the user's ISP and all the routers in between.
The ISP also has dial-in/login logs, perhaps even with
caller ID records. These can be subponea'd.

If the source IP addresses all come from the same small
ISP pool (or there's just one static IP), then the next
step is to subpoena the user's PC, and scour it for
evidence in the files, and more significantly, in the
web caches and deleted file blocks.

I'm no expert on computer forensics, so there may well
be even more sophisticated probes available.

There are a lot of kiddie porn collectors in jail
who thought they were anonymous on the net.

[Gondring]

Both sides also referred to a case in which the Appellate Division of the New Jersey Superior Court held that a corporation could not force the release of a poster's identity because it did not demonstrate that it was harmed by the comments.

That decision set up a four-part series of guidelines for future cases, among them a requirement that the plaintiff prove actual harm before an identity can be released. That decision was rejected by the Delaware Superior Court, but Finger said the justices could come up with a "modified" version of that decision.

Anyone know when that Superior Court decision occurred?

[Gabz]

UPDATE HERE

Bloggers win!!!

[Gondring]

Thanks for the update on this!