Dec. 7, 2008
There was some talk over at Heraldo’s the other day about Internet anonymity and the law. (Can’t find the link, sorry.) If I remember correctly, the nut of it was: Under what circumstances can a court force out the identity of an anonymous Internet blogger/commenter? Heraldo’s answer was that anonymous blogging has been ruled to be free speech, protected by the First Amendment. (UPDATE: Here we are.)
That’s true as far, as it goes. But it doesn’t go far enough. The First Amendment prevents the government from muzzling your speech. It doesn’t immunize you against the consequences of that speech. A civil lawsuit for libel or defamation could, in fact, move a court to demand identifying information from an ISP and/or a Web service like WordPress. In practice, of course, such a suit would be costly and time-consuming. But it’s not impossible.
Last January I was lucky enough to hear First Amendment attorney Thomas Burke, of the San Francisco firm Davis Wright Tremaine, address this issue at an industry convention. My big takeaway from Burke’s talk was that due to a quirk in the law, newspaper Web sites are uniquely immune when it comes to libelous and/or defamatory user-generated content.
As the law currently stands, Web site owners cannot be held liable for content that someone else has posted to the site. That goes for Yahoo, Heraldo, the Journal — everyone. But unlike Yahoo — and, I believe, unlike pure new-media outlets such as blogs — newspapers can use shield laws to fight subpoenas demanding identifying information about its site’s users.
That immunity is being challenged all over — with little success, so far — according to a recent article Thomas Burke wrote for the Association of Alternative Newsweeklies, which the author and the association have given us permission to reprint here. The article is written for newspaper people, but just about anyone interested in these issues will find something to ponder therein.
And as a special bonus, Burke has offered to take questions. This is your chance to get some free guidance from a very smart attorney at the forefront of this area of law. Anonymously, no less!
Handling Subpoenas Seeking The Identity of Anonymous Bloggers
By Thomas R. Burke
A new breed of subpoenas is hitting newsrooms these days – subpoenas seeking the identity of anonymous bloggers who post comments on news websites. Though handling subpoenas is nothing new for most publishers, this particular subpoena trend raises unique legal issues and should prompt newsrooms to carefully consider the circumstances in which they will fight to protect information.