Key Ruling Backs Blog and Web Rights

By: E&P Staff The Delaware Supreme Court on Wednesday reversed a lower court decision that had required an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official on a newspaper site. It was hailed nationally as the first state ruling in such a case.

The justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News.

"The decision of the Supreme Court helps provide protection for anonymous bloggers and anonymous speakers in general from lawsuits which have little or no merit and are filed solely to intimidate the speaker or suppress the speech," said David Finger, a Wilmington attorney representing John Doe No. 1.

The bloggers, among other things, pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual.

"Given the context, no reasonable person could have interpreted these statements as being anything other than opinion. ... The statements are, therefore, incapable of a defamatory meaning," Chief Justice Myron Steele wrote in his ruling, noting that blogs are inherently filled with opinion.

In June, the lower court judge had ruled that the Cahills had established a "good faith basis" for contending that they were victims of defamation and affirmed a previous order for Comcast to disclose the bloggers' identities.

But one of the bloggers, referred to in court papers only as John Doe No. 1, challenged the ruling, arguing that the Cahills should have been required to establish a prima facie case of defamation before seeking disclosure of the defendants' identities. The Supreme Court agreed, reversing and remanding the case to Superior Court with an order to dismiss the Cahills' claims.

Steele described the Internet as a "unique democratizing medium unlike anything that has come before," and said anonymous speech in blogs and chat rooms in some instances can become the modern equivalent of political pamphleteering. Accordingly, a plaintiff claiming defamation should be required to provide sufficient evidence to overcome a defendant's motion for summary judgment before a court orders the disclosure of a blogger's identity.

"We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously," Steele wrote. "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."

The standard adopted by the court, the first state Supreme Court in the country to consider the issue, is based on a 2000 New Jersey court ruling.

Under the standard adopted by the Supreme Court, a plaintiff must first try to notify the anonymous poster that he is the subject of subpoena or request for a court to disclose his identity, allowing the poster time to oppose the request. The plaintiff would then have to provide prima facie evidence of defamation strong enough to overcome a summary judgment motion.

"Delaware cases are generally respected in other states, and we'll have to see if this trend continues with these types of lawsuits, but I expect the decision of the Delaware Supreme Court to be influential," Finger added.