There are many websites these days that allow consumers or others to post comments or reviews about such things as restaurants, hotels, or other businesses. Even when such postings are anonymous, however, statements that may allegedly be false and defamatory may lead to efforts to find out who posted the comments so they can be sued.
Whether the identity of the person who posted the comments can be discovered is a complicated legal issue.
For example, as reported in the Daily Records last week, an owner of an apartment building recently filed suit against several “John Doe” defendants claiming they had posted false and defamatory statements about the owners. The plaintiff will then seek to use discovery to compel the website to disclose the identity of the persons who made the statements in order to sue them. Whether that information can be obtained is guided by a case from Maryland’s highest court in 2009 called Independent Newspapers v. Brodie.
In that case, Brodie sought to compel the newspaper to disclose identifying information about anonymous posters on its website. The appellate court held that the trial judge improperly ordered the newspaper to identify the “John Does” where the claimant had not alleged a valid defamation claim against them. Statements are defamatory if they are false, and tend to expose a person to public scorn or ridicule, and discourage others from having a good opinion or associating with the person defamed.
The Court of Appeals provided guidance for when such disclosure may be ordered in a defamation action where anonymous speakers or pseudonyms are involved. It said the court should 1) require the plaintiff to make efforts to notify the anonymous posters of efforts to compel disclosure of their identity, including posting notice on the message board; 2) withhold ruling to allow the anonymous posters a reasonable opportunity to oppose disclosure; 3) require the plaintiff to specify the exact content of the allegedly defamatory statements; 4) determine if the lawsuit has properly alleged a claim for defamation; and 5) if those steps are met, balance the First Amendment free speech rights of the posters with strength of the case of defamation alleged in the suit before ordering disclosure.
Whether such a test can be met will depend on the facts of each case, but persons who are posting critical comments anonymously on the internet should be aware of the potential that someone may seek to learn their identity and sue them for alleged defamation.