Blogs raise many challenging legal issues, including those involving defamation, privacy, and the legal definition of a blogger. From a legal perspective, emerging new media, which includes blogs, is rapidly evolving. The law has yet to catch up with the pace of new media and the issues they present. Courts handling new media cases have attempted to apply preexisting laws, create separate cyber laws, and allow self-regulation. As a result of these conflicting approaches, laws relating to the Internet may seem inconsistent.
Courts, bloggers, and every other Internet user, have entered uncharted territory. On the one hand, judges are grappling with new legal dilemmas that can have far-reaching implications because they will set the stage for the future of media law related to the Internet, just as the monumental cases of the past century have paved the way for freedom of speech and press in traditional settings. Meanwhile, the increasing number of people who use blogs as a form of expression – whether as an author or as a user posting a comment – may be unaware of the legal implications of their online actions. Indeed, the courts are at a critical juncture in communications law, as they have the potential to define how these freedoms apply to the relatively new field of online communications.
Speaking openly, and at times anonymously, via blogs can make the increasing number of citizens who take to their keyboards vulnerable to a host of legal issues. Even though blogs have been compared to “personal diaries,” they are anything but “private.” They have the potential to reach thousands – if not millions, which underscores the influence and impact even a single blog entry can have. As a result, bloggers should be – but are typically not – aware of legal issues in a medium in which every thought can be read.
Some of the most pressing issues related to the legal landscape of blogging include: under what circumstances can the identity of anonymous blog author or users be revealed, the applicability of traditional defamation standards, and whether bloggers should be considered journalists and be privileged to subsequent protections (i.e. shield laws).
Though anonymous speech, in print or online, has the potential to provide valid criticisms, particularly on matters of public interest, the freedom is not absolute, especially when it crosses the line into defamation. Defamation is defined as the publication of a false statement of fact “that would tend to hold one up to hatred, ridicule, contempt, or spite,” injuring a person’s reputation. Blogging is a form of expression that can be false and defamatory, so online libel is a risk for those who blog. Since a plaintiff cannot bring a defamation case without knowing the defendant’s identity, blogger anonymity presents interesting legal challenges. Courts are now tackling the issue of to what extent previous laws and precedents should be extended to online defamation.
Libel plaintiffs in cases involving anonymous posts on blogs face a heavy burden. In other mass medium – newspapers, magazines, broadcast stations, etc.– the person or entity that publishes a defamatory statement can be just as liable as the person making it. But, it is a different story on the Internet. The Communications Decency Act of 1996 (CDA) is a federal law that provides some immunity for bloggers and others. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (section 230). Under the law, bloggers cannot be held responsible for reader comments or guest bloggers content that is defamatory. Therefore, a libel plaintiff can only go after an individual who is the content creator, which can become very difficult when you consider the number of people who post anonymously. Because of the anonymous nature of the Internet, revealing someone’s identity is highly unlikely in many online defamation cases.
Courts establish balancing tests to decide when subpoenas should be enforced to unmask anonymous defendants for allegedly defamatory comments online. Many courts are moving away from a lesser standard requiring “good faith” by the plaintiff toward more restrictive standards, established by Cahill, that require plaintiffs to present evidence similar to that needed to survive a summary judgment motion. In addition, Reno v. ACLU said the medium – online, print, or broadcast – does not change the standard for defamatory speech.
In another important ruling, the New Hampshire Supreme Court in The Mortgage Specialists, Inc. v. Implode-O-Meter, adopted a standard providing robust protection for anonymous speech online and put a heavy burden on the plaintiff. The ruling puts New Hampshire in agreement with cases from other states providing these important protections. The Court took the opportunity to adopt a standard for trial courts to utilize when a plaintiff requests disclosure of the identity of an anonymous defendant who has posted allegedly defamatory material online.
The Court held that plaintiff should be required to “notify anonymous posters that they are subject of a subpoena or application for order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application.” The notifications might include posting a message on the respective message board. The plaintiff also must identify the exact statements in question and the court must conclude whether the plaintiff presented a prima facie cause of action. Finally, the court must balance a defendant’s right of anonymous free speech against the prima facie case and the necessary disclosure of the identity to allow plaintiff to proceed.
Revealing an identity can have a chilling effect on speech, because those willing to remain anonymous in the future may censor their comments, or not comment at all. Therefore, the courts must create a high standard, which most have done. A defamation plaintiff must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff’s control. They must be able to show the comments were defamatory before divesting online anonymity should even be considered. Much of the difficulty that surrounds successfully winning an online defamation case is brought about because the plaintiff must first prove who the publisher or writer of the statement is and, secondly, that the statement is false and written with the intention of causing damage.