Delaware Supreme Court Protects Anonymous Blogger
posted by:Ian Kerr // 10:28 AM // October 08, 2005 // Digital Democracy: law, policy and politics
a couple of days ago, the delaware supreme court had to decide whether to unmask an anonymous blogger for the purposes of a defamation lawsuit. the allegation in the case was that the anonymous blogger (aka "Proud Citizen") posted two blog posts discussing a member of the Smyrna Town Council, referring to his "character flaws," "mental deterioration," and "failed leadership..."
as a new york times article and other news articles have reported, the court decided to maintain the anonymity of the blogger.
in refusing to unmask the blogger's identity, the court reiterated the approach generally adopted by US Courts in such cases, which involves a much stricter standard than the one applied by canadian courts.
first, the plaintiff must make reasonable efforts to notify the defendant. second, the plaintiff needs to provide facts sufficient to defeat a summary judgment motion (often this is expressed in the language of demonstrating a prima facie case, i.e., that there is enough evidence to show the court that the case is strong enough to proceed to trial).
in the delaware case, the court held that the plaintiffs had not shown that statements made by Proud Citizen met this test, in large part because the statements were likely to be seen by the internet audience as statements of opinion -- which would therefore not constitute defamation for the purposes of US law.
it is interesting to compare the US approach to the one adopted by canada's federal court of appeal in bmg v doe.
although there was no good evidence that the anonymous defendants had done anything illegal (in fact, the appeal was dismissed on that basis), canada's federal court of appeal was persuaded by the canadian recording industry association not to adopt the well known prima facie standard.
it is interesting that canada's recording industry wants us to follow the US approach when it comes to copyright law but has, at the same time, fought so hard against adopting the US's procedural safeguards when it comes to protecting the identities of persons who are merely alleged to have enagaged in some kind of wrongdoing.
i suspect that canadian courts will likely revisit this issue in a future online defamation case and i predict that the courts will realize that the procedural standard in bmg v doe is incorrect.
if this is plausible, it might be worth asking why the court refused to apply the appropriate standard in the copyright context.
do actions for breach of copyright truly justify a different standard for unmasking defendants, or did the music industry's camapaign against file-sharing somehow cloud the issue?
