Replies

Re your posts #51, #52 and my post #87

This is not the NYT article I was originally thinking of, but it's quite similar in content, as another court is protecting a blogger's identity here:

Delaware Supreme Court Declines to Unmask a Blogger

October 6, 2005, Thursday

By RITA K. FARRELL (NYT); Business/Financial Desk

Late Edition - Final, Section C, Page 3, Column 1, 471 words

DISPLAYING FIRST 50 OF 471 WORDS -The Delaware Supreme Court ruled Wednesday that if an elected official claims he has been defamed by an anonymous blogger, he cannot use a lawsuit to unmask the writer unless he has substantial evidence to prove his claim. That standard, the court said, ''will more appropriately protect against the...

Correction: October 8, 2005, Saturday Because of an editing error, an article in Business Day on Thursday about the Delaware Supreme Court's refusal to help a city councilman identify an anonymous blogger referred incorrectly to the information he obtained from the blog's publisher. It was an I.P. address (or Internet Protocol address), which identifies a specific computer, not a Web address.

More, below, from a person posting at Blogs at the Center for Internet and Society, cyberlaw.stanford:

Protection of anonymous speech online extended to Bloggers

The NYT reports that a Delaware Supreme Court has ruled that a public official who claims to have been defamed by an anonymous blogger cannot use a subpoena to unmask the blogger’s identity unless he has “substantial evidence” to prove his claim.

This is the correct decision. I was involved in some of the first cases challenging the use of subpoenas to learn the identity of anonymous posters on Yahoo message boards when I was at EFF. The problem is that in the course of normal civil litigation, courts generally do not like to get involved in the discovery process, and there is a general philosophy to disclose all information so that there are no surprises at trial. We had to convince the courts that subpoenas seeking the identity of a speaker were special, because the First Amendment protects a speaker’s right to speak anonymously. So there needed to be some burden on the party seeking the information to demonstrate that they have a valid claim before the identity of the speaker was revealed.

Here, the Delaware Supreme Court says that the burden is that the plaintiff must have “substantial evidence” to support their claim that they were defamed before the Court will allow the name of the blogger to be released. The timing is important because it prevents plaintiffs from filing bogus claims just so they can issue subpoenas to get the blogger’s name. As the Court said, this standard:

...will more appropriately protect against the chilling effect on anonymous First Amendment Internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or unmask their critics.