Pay No Attention to That Man Behind the Curtain; Because I’m Posting Anonymously Right?

So, You Think You Can Say Something Defamatory About Someone On The Internet That You Might Not Otherwise Say Elsewhere, Because You Think You Can Hide Behind The Anonymity of the Internet? Well, You Might Want To Rethink That Strategy Before Deciding To Do So Now

Donald Maxon and Janet Maxon v. Ottawa Publishing Co.1

Ever posted something on an online newspaper or other website that allowed you to voice your opinion about a particular article or subject anonymously? If you’re reading this and you are connected to the World Wide Web, chances are greater than not that you have. Well, the Third District of the Illinois Appellate Court and some other jurisdictions are weighing in and warning that your posts might not be so anonymous after all; that is, if they are defamatory2 in nature. Just ask the people who posted derogatory statements aimed at Donald and Janet Maxon (the Plaintiffs) on the online version of the newspaper, “The Times”, affiliated with Ottawa Publishing, Co. (hereinafter referred to as Ottawa Publishing), which is distributed in and around Ottawa, Illinois.

According to the court’s decision, on March 20, 2008, Ottawa Publishing posted an article on the online version of its newspaper called “MyWebTimes”3  , titled “Ottawa: Commissioners favor B&B additions, changes.” “The subject of the article, which generally reported on the Ottawa Planning Commission’s consideration of a proposed ordinance to allow bed and breakfast (B&B) establishments to operate in residential areas, precipitated numerous comments by readers. The article did not mention the plaintiffs by name.”4

Continuing its coverage of the controversial ordinance proposal, less than a month later, Ottawa Publishing published a letter to the editor on its website titled “Precedent will be set by changing B&B ordinance!”. The letter posted to the internet again did not mention the plaintiffs by name. The post, however, again spawned readers to post numerous comments online about the issue.5

Subsequently, the Maxons commenced litigation to discover the identities of the anonymous posters. As part of the lawsuit, the Maxons petitioned the court for an order requiring Ottawa Publishing to disclose “the ‘name, address, phone number, e-mail address or other account information used to establish their blog ‘identity,’ the password used for access to the blog, or other identifying information’ for “FabFive” and “birdie1.”

Pleadings were filed on both sides as to whether or not the Maxons should be allowed to move forward with their lawsuit. The circuit court also allowed each side to argue their respective positions during oral arguments on the pleadings, after which the court dismissed the Maxon’s lawsuit, noting that no precedence in Illinois had previously addressed whether such a lawsuit could proceed, and what burden had to be met in order to do so. The trial court had looked at authority from other jurisdictions, but concluded that the Maxons were not entitled to ascertain the identities of the anonymous posters.6 According to the opinion of the third district, the trial court adopted the analysis of these other jurisdictions, and ruled that “a petitioner seeking the disclosure of an anonymous Internet poster must show that:

(1) the anonymous poster has been notified of the potential claim so they may have the opportunity to appear; (2) the petitioners have set forth the exact statements that have been purportedly made by the anonymous person; and (3) the allegations meet a prima facie standard and are able to withstand a hypothetical motion for summary judgment as if brought by one of the potential defendants, at least with regard to elements that are within the petitioner’s knowledge. The trial court noted that the goal in applying the [above test is] to balance the rights of a person not to be defamed with the first-amendment, free-speech rights of anonymous posters. (internal citations omitted).

The trial court found that the Maxons had not satisfied the third prong of the test, believing that “the literary and social context of the statements rendered them nonactionable opinions as a matter of law.” In other words, the statements were not defamatory as a matter of law.

The Third District of the Illinois Appellate Court framed the ultimate issue as being: whether “allegedly defamatory speech enjoys any constitutional protections, such as the right to speak anonymously?”7

In order for a plaintiff to be able to proceed with such an action for defamation, the third district held that:

the court must insure that the petition: (1) is verified; (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation; and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant, i.e., the unidentified person is one who is responsible in damages to the petitioner. (internal citations omitted)

The court was of the opinion that any protections afforded by the United States Constitution as to cases of this nature are sufficiently addressed by such an analysis and would be adequately considered when the court makes its determination as to whether or not the plaintiff has plead sufficient facts to meet its burden “as part of [its] prima facie case”.

The long and the short of the court’s opinion appears to be that what one posts anonymously does not necessarily afford more protection than what one would say or write using their true identity. Defamatory statements are defamatory statements, and one should not post such statements relying on the belief that they will be shielded by the superficial protections of the otherwise faceless Internet. Simply put, what you wouldn’t say in public for fear of retribution, you shouldn’t post anonymously online.8 As the court noted, “it is overly broad to assert that anonymous speech, in and of itself, warrants constitutional protection.”

However, as the court outlines in its analysis above, the same scrutiny will be applied to determine whether the speech is protected by the 1st Amendment. While this post is not intended to explore available defenses to defamation lawsuits, and this author does not profess to have expansive knowledge regarding libel and slander cases, a few examples that come to mind include (1) whether the targeted individual is a public official or other notable public figure, such as a celebrity or professional athlete9 (2) whether the statement is true10 or (3) whether the public’s interest in freedom of expression outweighs the plaintiff’s interest in preserving his reputation.

As can be ascertained from the court’s opinion and from merely conducting an online search of the topic, other jurisdictions are having to establish precedence for this type of litigation as well. Dubbed  “cyberlibel” by those on the World Wide Web11 , such cases appear to becoming more and more common. One interesting case that caught my attention was highlighted by the New York Times on their website.12 The case identified in the article involved a twenty-one year old college student named Just Kurtz who created an entire website devoted to lambasting a towing company for what he claims was an illegal tow. The towing company, T&J Towing retaliated by filing a defamation lawsuit, one which the New York Times cites some lawyers referring to as a “SLAPP” lawsuit, an acronym for “strategic lawsuit against public participation”. One might also refer to them simply as meritless or harassment lawsuits.

Again, the lesson to be learned is don’t post something on the internet anonymously that could possibly be considered defamation for fear of retribution from your target. Internet libel or “cyberlibel” is still libel, whether or not you are asking others to “pay no attention to that man behind the curtain”.13

  1. Docket No. 03-08-05 (Ill.App.Ct. 3rd Dist 2010); http://www.state.il.us/court/Opinions/AppellateCourt/2010/3rdDistrict/June/3080805.pdf [↩]
  2. defamation can include libel or slander, which is beyond the scope of this blog [↩]
  3. http://www.mywebtimes.com/index.php [↩]
  4. One online user posted “‘Money under the table???????????” Another posted: “”Way to pass the buck Plan Commission!! You have dragged this garbage out for over a YEAR now and despite having the majority tell you to NOT change the ordinance you suggest the exact opposite! How dare you! How dare you waste the time of the townspeople who have attended EVERY single one of these meetings to speak out against any changes!! But hey, you don’t have the final word so just pass the buck and waste even MORE TIME. How much is Don and Janet from another Planet paying you for your betrayal???? Must be a pretty penny to rollover and play dead for that holy roller…IF this gets anywhere NEAR being passed in favor for the Maxon CULT, you can bet your BRIBED BEHINDS there will be a mass exodus of homeowners from this town…who will you tax then if noone [sic] lives here?” (emphasis in original) [↩]
  5. The text of the other posts can be read in the court’s decision posted supra, but the court identified the usernames of the posters as being “Mary1955”, “FabFive”, and “Birdie”. [↩]
  6. The court’s opinion references that the trial court relied heavily on Dendrite Int’l, Inc. v. Doe No.3, 342 N.J. Super. 134, 775 A.2d 656 (App. 2001) & Doe v. Cahill, 884 A.2d 451 (Del. 2005); cases which were also discussed at length in the third district’s opinion. [↩]
  7. It is important to again note, that at the trial level, the Maxons were simply trying to ascertain the identity of the posters pursuant to IL. S. Ct. R. 224, a special Rule that allows a person or entity to initiate a lawsuit with the specific purpose of identifying a responsible party or parties. [↩]
  8. In this author’s opinion, the internet is far more damning as well, due to the fact that what you post online may outlive its poster; possibly even lasting for eternity [↩]
  9. public officials and celebrities must meet a higher burden of proof to successfully prosecute a claim for defamation [↩]
  10. truth is always a defense to defamation lawsuits [↩]
  11. conducting an online search of the term “cyberlibel reveals a slew of cases and commentary regarding the topic [↩]
  12. http://www.nytimes.com/2010/06/01/us/01slapp.html [↩]
  13. A quote from MGM’s “Wizard of Oz” (1939). [↩]

Filed under: General by Terry Dodds

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