Sunday, March 1, 2009
The Maryland Court of Appeals issued an interesting decision last Friday concerning the authority of a court to compel an Internet website host to identify forum participants that post anonymous comments in a lawsuit brought by a plaintiff claiming defamation. The court notes that the case is one the first in Maryland to consider Internet-related issues. The principal opinion holds that the trial court must allow the defendant a reasonable opportunity to notify the person whose identity is sought, allow that person the opportunity to oppose disclosure, require the plaintiff to identify the allegedly defamatory speech, determine whether the plaintiff has established a prima facie claim and then impose a balancing test of the strength of the claim versus the forum participant's First Amendment rights in determining whether to order disclosure.
A concurring opinion, joined by two judges, is concerned about the application of the balancing test: "I fear that the majority's decision invites the lower courts to apply, on an ad hoc basis, a 'superlaw' of Internet defamation that can trump the well-established defamation law." (Mike Frisch)