Indiana Court Says Anonymous Commenters Deserve High Standard Before Being Exposed, But Aren't Necessarily Protected By Shield Laws

from the seems-reasonable dept

Mon, Feb 27th 2012 5:36am — Mike Masnick

A few months ago, we wrote about a case in Indiana involving an attempt to unmask an anonymous commenter on a newspaper website who effectively accused someone of embezzlement. There were a few legal questions involved in the case, and the one we had focused on involved the newspaper itself trying to protect that commenter under Indiana Journalism shield laws. At the time, we'd argued that the shield law should probably be limited to cases where the individuals actually were acting as a source... and that basic First Amendment case law could handle the anonymity question outside of the shield law.

It looks like the court effectively agreed with just about everything we said. The court rejected the shield law argument, but not in a broad way saying that commenters aren't protected under the shield, but that this comment wasn't really a "source" in any meaningful way, and the newspaper didn't use the comment as the basis for any additional reporting. However, the court pretty clearly suggests that in other cases, commenters could be considered sources and could be protected by shield laws.

However, perhaps more importantly, the court set a relatively high bar for unveiling the anonymous commenter -- adopting the Dendrite rules that give the anonymous person a chance to respond and which require the plaintiff to present a significant amount of evidence that the comments violate the law before any unmasking is ordered. While the Dendrite rule still is not standard, it is spreading, and it's nice to see Indiana adopt it as well.

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Filed Under: anonymous speech, commenters, dendrite rules, indiana, journalism, shield laws

24 Comments

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Skeptical Cynic (profile), 27 Feb 2012 @ 6:37am

But could the comment be fighting words?
Just wondering in type. Could the comment be considered fighting words which is an exception to the 1st amendment?

In Chaplinsky v. New Hampshire (1942), the Supreme Court held that speech is unprotected if it constitutes "fighting words".[28] Fighting words, as defined by the Court, is speech that "tend[s] to incite an immediate breach of the peace" by provoking a fight, so long as it is a "personally abusive [word] which, when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction".[29] Additionally, such speech must be "directed to the person of the hearer" and is "thus likely to be seen as a 'direct personal insult'"

I would consider it fighting words if someone called me a embezzler. Just saying.
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Bengie, 27 Feb 2012 @ 6:43am

Re: But could the comment be fighting words?
Your whole opinion is irrelevant because you said "a embezzler" instead of "an embezzler".

Only YOU can stop grammar nazis!
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Anonymous Coward, 27 Feb 2012 @ 6:43am

Your a bear.
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Skeptical Cynic (profile), 27 Feb 2012 @ 6:44am

Re: Re: But could the comment be fighting words?
Damn typos
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Howard the Duck, 27 Feb 2012 @ 6:52am

Re:
Don't make Bengie give you a techdirt smackdown.
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Anonymous Coward, 27 Feb 2012 @ 7:31am

Sadly, I would say that adopting those laws raises the bar a little too high when it comes to the offended party. Requiring that a completely made case be presented before the courts would even consider unmasking. I am wondering why anonymous commentators should get any more protection than anyone else.

Seems like they have created a two layer system. If the comments are strong enough that someone feels the need to file a lawsuit about it, why should the anonymous person be able to hide behind a higher standard?
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The eejit (profile), 27 Feb 2012 @ 7:33am

Re:
I reserve my Second Amendment right to bear-arms.
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Pixelation, 27 Feb 2012 @ 7:40am

Re:
"If the comments are strong enough that someone feels the need to file a lawsuit about it, why should the anonymous person be able to hide behind a higher standard?"

Perhaps the comments weren't strong enough.

A better question is, why should it be so damn easy to sue?
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Chris-Mouse (profile), 27 Feb 2012 @ 7:46am

Re: Re:
What about your right to arm bears?
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That Anonymous Coward (profile), 27 Feb 2012 @ 8:12am

Re:
Because it is currently very easy for people/corporations who have power and money to file lawsuits to unmask anonymous commentators on baseless claims. There have been plenty covered here, where it is more important to find out who was mean to you rather than have an actual action to sue for.

If the standard to unmask started above, they hurt my feelings as being the basis for a lawsuit then we'd not need the rules.
But various courts have ruled in various ways creating this amazing patchwork of findings where offending someone with a truthful statement is the basis for a lawsuit. They have no intention of actually winning the case, they just want the name so they can take their own actions against people.

Search TechDirt for "Liskula Cohen".
Random blogger called her a skank, and comedy ensued.
Didn't have to prove there was loss of work, a Judge felt it was defamatory, despite the fact there were next to no visits to the site. Then there was a 3 million lawsuit for hurt feelings, that was on again, off again... and her lawyers statement that he had no idea that this lawsuit might show his client in a bad light.

Thinking someone is a skank is personal opinion, should the merits of this be debated in a lawsuit?
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Torg (profile), 27 Feb 2012 @ 8:30am

Re:
I'm not sure I understand the question. Are you saying it's bad for someone to show that they have a case before the defendant is brought into court?
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kamjam (profile), 27 Feb 2012 @ 8:31am

Re: Re:
I reserve my Second Amendment right to bear-arms.

http://technipol.tumblr.com/post/2874977984/family-guy-the-right-to-bear-arms

...as suming you weren't referencing this in the first place! :)
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Gwiz (profile), 27 Feb 2012 @ 8:38am

Re:
If the comments are strong enough that someone feels the need to file a lawsuit about it, why should the anonymous person be able to hide behind a higher standard?

Reason #1: Because any moron with a lawyer can file a lawsuit for just about any reason, including "He hurt my feelings!".

Reason #2: Because anonymity has been recognized prior to our country's founding and has been upheld by the Supreme Court multiple times.

From the 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . .anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

Reason #3: Because speech itself is protected by the Constitution. Just because some yahoo with a lawyer claims it to be illegal or unprotected speech doesn't necessarily mean it is. A court of law usually determines that.
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TheStupidOne, 27 Feb 2012 @ 8:44am

Re:
Consider this: Revealing the identity of an anonymous person could be considered a form of punishment. We are supposed to only punish guilty people. So why should someone be punished just because someone if offended by what they say?

Additionally in a court of law the prosecution makes its case and then the defense makes its case. So requiring a completely made case isn't this extraordinary burden, it just forces the offended person to be better prepared a bit earlier than usual. Then if the case looks strong, the anonymous person has to give up their anonymity in order to defend themselves or settle.
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The eejit (profile), 27 Feb 2012 @ 8:57am

Re: Re: Re:
Actually, no. I actually meant I want some damned bear-arms!
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Anonymous Coward, 27 Feb 2012 @ 9:11am

Re: Re:
No, I am saying it's bad that a higher standard appears to be applied to anonymous comments than to signed ones. The standard for taking someone to court should not be different based on their method of speech, or if they decide to announce their name at the end of it or not.

If the lawsuit is filed, there should be no reason for the anonymous to be retained. If the lawsuit has no merit, the anonymous can counter sue for harassment and likely win easily.
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Anonymous Coward, 27 Feb 2012 @ 9:12am

Re: Re:
Isn't that punishment self inflicted?
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Chronno S. Trigger (profile), 27 Feb 2012 @ 9:18am

Re: Re: Re:
When someone posts anonymously it's a free will choice. Our choices should be respected unless they are illegal. All that is required is proof of an illegal activity before first amendment rights are stripped away.

I want to know why it's so easy to sue someone who's not anonymous. Why would I have to defend myself in a lawsuit if there's no evidence of illegal activity.
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Chronno S. Trigger (profile), 27 Feb 2012 @ 9:21am

Re: Re: Re:
If I sued you right now for this comment and forced your real name into the public, would that be right? I would have absolutely no case and no reason to thrust you into the public eye, but that's exactly what you're calling for. I should be able to just force you to not be anonymous on a whim.
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Torg (profile), 27 Feb 2012 @ 9:33am

Re: Re: Re:
Ah, okay, now I get it. The law is unfairly balanced towards anonymous comments.

That could easily be fixed without removing the reasonableness of a requirement of proof of wrongdoing. Just extend the protection to everyone regardless of the publicity of their name.
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Anonymous Coward, 27 Feb 2012 @ 2:50pm

Re: But could the comment be fighting words?
Here's one to think about, since fighting words aren't protected, does that mean trolls aren't protected?
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Anonymous Coward, 27 Feb 2012 @ 3:01pm

Re: Re: Re:
What if the comment was critical of an issue where the anonymous person had insight that isn't widely available, such as an employee of a company that is conducting unethical practices behind the scenes. The comment may be a starting point for fixing the problems. Unduly revealing the commenter could cost the person their job and their ability to work from the inside to fix the problem. Anonymity is vital.
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John Fenderson (profile), 27 Feb 2012 @ 3:33pm

Re:
why should the anonymous person be able to hide behind a higher standard?

I don't think there is a higher standard. The idea is that before an anonymous commenter is unmasked, a case has to be made that the law was violated. The same case has to be made if the commenter is not anonymous. It's the same standard.

This makes sense to me -- if the speech isn't in violation, then harm will have been done to an innocent party (the anonymous commenter who was unmasked). It seems prudent to ensure that there's a real problem before doing something that can't be undone.
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John Fenderson (profile), 27 Feb 2012 @ 3:34pm

Re: Re:
I should add that it isn't usually necessary to know who spoke to know if the speech is permissible or not.
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