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Louisiana State Univ.

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Friday, October 28, 2005

Delaware Supreme Court: Defamation Plaintiff Must Satisfy Summary Judgment Standard Before Obtaining Identity of Anonymous Poster

In John Doe I vs. Cahill, the Delaware Supreme Court has ruled that "a defamation plaintiff must satisfy a "summary judgment" standard before obtaining the identity of an anonymous defendant." In this case, a city councilman and his wife objected to anonymous postings alleging defamation and invasion of privacy and requested that an ISP divulge the names of the posters. The trial court set the standard of "good faith" and ordered the ISP to divulge the names. One poster appealed.

In reversing the trial court, the higher court noted that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, "the sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money." "The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him." This "sue first, ask questions later" approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked." The commentator whom the Court quotes here is Lyrissa Lidsky, and the reference is to her piece, "Silencing John Doe: Defamation and Discourse in Cyberspace," 49 Duke Law Journal 855 (2000).

Continues the Court, "We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all. A defamation plaintiff, particularly  a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker "may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes." Plaintiffs can often initially plead sufficient facts to meet the good faith test applied by the Superior Court, even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision. After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution."

Read the entire opinion here.

http://lawprofessors.typepad.com/media_law_prof_blog/2005/10/delaware_suprem.html

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