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America Online User’s Identity Should Not Be Disclosed on Plaintiff’s Whim

Oct. 1, 2002

America Online User’s Identity Should Not Be Disclosed on Plaintiff’s Whim

Courts Should Follow Stringent Guidelines Before Granting Disclosure of Anonymous Speakers

WASHINGTON, D.C. – The court should not grant a public official’s demand that an anonymous Internet critic be identified as part of her defamation suit, particularly because she has not shown she was actually harmed by the criticism. Further, the identities of anonymous online speakers should not be disclosed unless a specific set of conditions has been fulfilled, Public Citizen argued in an amicus curiae brief filed today with the Pennsylvania Supreme Court.

Pennsylvania Superior Court Judge Joan Orie Melvin initiated a defamation suit in 1999 against John Doe, the author of a political commentary page on which he criticized two local judges, including Melvin, for allegedly lobbying the governor over local judgeship appointments, an action Doe called unethical. Melvin attempted to compel America Online, Doe’s Internet service provider (ISP), to reveal Doe’s identity. A trial court ordered America Online to do so, but that will not be done before the state supreme court has reviewed Doe’s appeal.

In its brief, filed also on behalf of the Electronic Frontier Foundation and Electronic Privacy Information Center, Public Citizen argued that the trial court improperly determined that the statements about Melvin were defamatory and that Melvin had offered evidence that the statements were false. This decision was reached despite the complete absence of evidence of actual harm and without weighing the potential harm to Melvin if she were unable to proceed in the case against the right of Doe to remain anonymous.

“The original decision to disclose the speaker’s identity didn’t take into account the chilling effect that identifying an anonymous critic would have,” said Paul Alan Levy, an attorney with the Public Citizen Litigation Group and author of the brief. “The Internet has the potential to be an equalizing force within our democracy, but not if ordinary citizens are unable to communicate their views with full First Amendment protection.”

Adopting Public Citizen’s reasoning, a New Jersey court last year followed a five-part test to determine whether the identities of online critics should be revealed, thereby ensuring that First Amendment rights are not unnecessarily restricted. Courts should first ask the ISP to notify speakers that they are the subject of a subpoena and give the defendant a reasonable amount of time to retain counsel. Second, plaintiffs should identify for the court the specific statements that are at issue in the case. Next, the court should review each of the statements to determine if they are potentially defamatory. Overly vague statements, or statements of opinion, for example, would not be sufficient for legal action. Those seeking disclosure should also be required to show that they have a realistic chance of winning a lawsuit against the anonymous speaker. In the case of a public figure, proof of actual damages should be required at this point. Finally, the court must balance the importance of the speaker’s anonymity against the strength of the plaintiff’s case.

“If the plaintiff’s case is weak – and it is in this case – disclosing the name of the speaker will only serve to trample the rights to free and anonymous speech on the Internet.” Levy said. “Once a speaker loses his or her identity, it can never be regained. Courts should be very careful with this.”

By following the five-step test outlined in its brief, courts ensure will not only that Web users who make wild and outrageous statements will not be immune from lawsuits but also that the legitimate rights to anonymous speech will not be breached, Public Citizen argued. The test also will discourage the filing of unnecessary or frivolous lawsuits.

Public Citizen is involved in this case because it has a history of championing free speech on the Internet. Click here to view a copy of the brief. The ACLU is representing Doe in the case. Click here to view its brief.