On-Line Posters Face New Exposure to Defamation Claims

3/18/2011 COMMENTS (0)

It is a common practice for media websites to allow members of the public to post comments about stories on these sites.  While many of these online comments make a positive contribution to public discourse, it is not uncommon to see comments by anonymous or pseudonymous posters making unsupported and sometimes defamatory assertions about people or products. It is likely that some of these online posters are emboldened by a belief that their anonymity shields them from accountability.  A recent ruling by an Indiana trial court suggests this belief is mistaken.

In Jeffrey M. Miller, et ano v. Junior Achievement of Central Indiana, Inc., et al, Indiana Superior Court, Marion County, Cause No. 49D14-1003-PL-014761, a former CEO of a non-profit organization, in an effort to expand a pending defamation action, sought to identify the person who posted, under the name “DownWithTheColts,” allegedly defamatory comments about the CEO on the website of the Indianapolis Star.  He sought an order compelling the Star to disclose information, such as the poster’s Internet Protocol address, that would identify the pseudonymous poster.   

The Star opposed the request, arguing that the poster was covered by Indiana’s journalism shield law (Ind. Code sec. 34-46-1,2) and that disclosure of the identifying information would have a “severely chill[ing]” effect on constitutionally-protected speech.  The Court rejected these arguments, and in an Order dated Feb. 23, 2011, directed the Indianapolis Star to provide the information.

The Court implicitly rejected the argument that the online poster’s comments were protected by Indiana’s journalism shield law.  This does not seem particularly surprising, as the shield law covers only people “connected with or employed by” a news organization “as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news,” and an online poster would not fall within this definition.   

A few observations.   

First, the former CEO does not appear to be seeking to hold the Indianapolis Star responsible for the comments of the online poster.  Presumably, he recognizes that courts have concluded media websites are not responsible, under the Communications Decency Act (47 U.S.C. §230(c)(1)), for the content of comments posted by users of the site.

Second, media websites should consider adding a provision to the Terms and Conditions of their website to warn users that their identification information is subject to disclosure, thereby avoiding a claim that the website breached an implicit agreement to protect this information.  See http://indianalawblog.com/archives/2010/04/ind_law_editors.html (discussing action brought by an Ohio judge and her daughter claiming the newspaper breached the terms of use for its Web site by disclosing their identity in articles about anonymous comments they made on the newspaper’s website).

Third, and most obvious, online posters should be careful about what they post.  While some of the comments at issue in the Junior Achievement case (referring to the former CEO as “the most greedy man I’ve ever known”) are not defamatory because they are statements of opinion, not fact, defending a defamation lawsuit by an aggrieved and motivated plaintiff can be an expensive and stressful experience.