The Curiosities of Anonymous Libel

The internet is still a relatively new medium of communication for the common person, but its potential as an anonymous medium of communication has grown exponentially as more and more people become familiar with its capabilities. The problem with anonymity and privacy on the internet emerges if the messages or content that are posted conflict with areas of speech that are not covered by the First Amendment. This can include prior restraint, non-seditious libel, and obscenity. Internet obscenity and indecency cases such as Reno vs. ACLU, which concluded with the ruling that anti-indecency provisions in the Community Decency Act are unconstitutional [1], have generally been very libertarian in their opinions. In the ruling for Reno, the libertarian opinion protects the internet speaker's interests, while putting the burden of risk on the internet users.

However, the risk from encountering obscenity on the internet seems to be very different in nature to encountering libel on the internet. Anonymous libel can often be shown to be fighting words, directed at a specific party ; the potential for anonymous libel accusations is much higher than for distribution of obscene material ; and the harm from libel is often much more measurable and visible. However, since the internet users that initiate the libel can often hide behind the veil of anonymity of internet domains, one wonders how plaintiffs can ever win libel cases if their requests for identity subpoenas to the internet service providers are denied.

To win a civil libel case, a plaintiff must win in the following four points in the libel test[2]:
1) Publication: the libel must be published
2) Identification: the libel must identify the plaintiff without reasonable doubt
3) Harm: the libel must seriously shame, disgrace, ridicule, or injures a person's reputation.
4) Fault: negligence

In anonymous libel cases, such as the case of Doe vs. 2TheMart.com in 2001[3], or in Independent Newspaper vs. Brodie in 2008[4], the courts must grant subpoenas before the internet service providers must reveal the identities of the libelous internet users involved. In both of these cases, the libel was criticism towards corporate governance and management of companies or estates. The current existing test for granting subpoenas for identities of libelers was established by the Brodie case, and is as follows[5]:

(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;
(2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application;
(3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
(4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and
(5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s
identity, prior to ordering disclosure.

These two ruling and proposed tests have both been seemingly libertarian in their use, in favor of the privacy of the internet posters. The Brodie test narrows down the scope of the requirements for passing the subpoena test, reducing the chilling effect on criticism posted on forums, keeping the marketplace of ideas open, and putting the burden of proof on the plaintiff. The chilling effect argument has generally been used in favor of libertarian rulings on anonymous libel. [6]

However, I would like to argue that the Brodie test places the burden on the plaintiffs too much as to create a reverse-chilling effect, and provides a dangerous situation where anonymous internet posters can exploit the difficulty of the Brodie test in order to intentionally create anonymous libel to harm others. This stems from the fact that there are two tests that a plaintiff would have to fulfill in order to identify and persecute the source of the libel. The established test for libel is narrow enough to be generally applicable, but how should plaintiffs "balance the anonymous poster's [...] right of free speech against the strength of the [...] defamation presented by the plaintiff"? This language seems too broad and vague, and it is reasonable for the anonymous libeler to exploit this vagueness, especially if there is intention to cause harm to the plaintiff.

To illustrate this point, we can consider the case of the anonymity-based Wikileaks. Wikileaks is a website where anyone can upload documents and materials anonymously, and anyone can access the material anywhere. Wikileaks was one of the pathways for the distribution of the emails at the center of the "Climategate" Climate Research scandal, as well as for the "Petrogate" oil scandal in Peru in 2008 [7]. Most people would argue that the revelation of these materials is precisely what the First Amendment is meant to do.

To contrast this, imagine what would happen if anonymous users uploaded false documents specifically for the purpose of libel. In today's fast-paced world, it is extremely easy for libel to destroy a person's reputation, even if the libel can be proven to be false. For example, even though Michael Jackson was never convicted of child sexual abuse, 41% of people believe that he has[8]. If someone had created a fake picture of Michael Jackson molesting a child, and anonymously uploaded it onto Wikileaks, would the anonymous poster's right of free speech had outweighed the defamation against Michael Jackson enough for the court to grant subpoena? Let's take another example: if one of Toyota's American rivals had created an advertising video of a Toyota Prius speeding out of control and killing someone, and anonymously uploaded it ostentatiously for the purpose of sabotaging the sales of the Prius, how would American courts determine whether the right of free speech trumps the libel presented enough to grant subpoena?

Upon close examination, it would seem that the last requirement in the test for granting the subpoena is firmly rooted in neoliberal theory, and has the potential to be abused. There is potential for the test to be abused against the defendants, but the remaining 4 requirements help shield the defendants ; whereas it would seem that courts could arbitrarily rule that the plaintiff had not "balanced the anonymous poster's right of free speech with the strength of the defamation", refuse to grant subpoena, and therefore dismiss the entire case that the plaintiff has brought against the anonymous libeler. This could lead to long-term implications of benefiting political incumbents, since they could have the resources to launch a full-scale anonymous libel attack on an adversary, and the courts might rule to benefit the incumbents when the adversary files a libel suit. We can compare this with Madison's reasoning for the maximalist interpretation of the First Amendment, where he advocates against subsequent punishment, because it would benefit the political incumbents, and therefore be against the theory of democracy. The only difference is, in this case, it would be the lack of subsequent punishment that would be used to benefit the political incumbents.

From this analysis, I believe that the current subpoena test needs to be redefined as to shift some of the burden off of the plaintiff. Courts should not have the power to define the importance of the libel in question in a libel case, as this would make the system a neoliberal and ad-hoc system that is prone to abuse.


Bibliography:
[1] http://en.wikipedia.org/wiki/Reno_v._American_Civil_Liberties_Union
[2] http://www.splc.org/legalresearch.asp?id=27
[3] http://cyber.law.harvard.edu/stjohns/2themart.html
[4] http://www.citmedialaw.org/threats/brodie-v-independent-newspapers-inc-lawsuit
[5] http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-02-27-Maryland%20Court%20of%20Appeals%20Decision%20in%20Independent%20Newspapers,%20Inc.%20v.%20Brodie.pdf
[6] http://www.firstamendmentcenter.org/speech/internet/topic.aspx?topic=online_libel
[7] http://en.wikipedia.org/wiki/Wikileaks
[8] http://crime.about.com/gi/pages/poll.htm?poll_id=6822671701&linkback=