Indiana Court Requires Newspaper to Reveal Identify of Anonymous Newspaper Website Commenters

Indiana Court Requires Newspaper to Reveal Identify of Anonymous Newspaper Website Commenters

by Jerry Glover
March 1, 2012

Many newspapers have embraced the Internet as a way to keep, and perhaps enlarge, their readership. Most newspapers will post articles on their websites and allow readers to post comments immediately following those articles. Some newspapers do not require “commenters” (also called “posters”) to register with the web site prior to posting comments so that those commenters are truly anonymous should they choose not to reveal their identities and use only some type of login name.

On February 21, 2012, the Indiana Court of Appeals issued a ruling in a case in which the plaintiff, a former president of the local Junior Achievement chapter, alleged that The Indiana Star and others had defamed him as a result of a story the Star posted on its website about the Junior Achievement organization and allegations of misappropriated funds. In Re Indiana Newspapers, Inc., 2012 WL 540796. A short time later an anonymous individual posted a comment on that same website page claiming that authorities needed to look at the “FORMER [sic] president of JA [Junior Achievement] and others on the [Foundation] board. The ‘missing’ money can be found in their bank accounts.”

Plaintiff filed a defamation suit against Junior Achievement and several individuals based on comments made in the Star article. The plaintiff also demanded that the newspaper provide records and documents that would identify the anonymous commenter. The Star refused arguing three things: (1) the Indiana “shield” law protects the identity of the commenter; (2) the First Amendment guarantee of free speech protects anonymous speech; and (3) the Indiana Constitution’s guarantee of free speech also protects anonymous speech.

The plaintiff argued that he had no other way to identify the anonymous commenters and that without knowing the commenter’s identity the plaintiff could not hold him/her accountable for his defamatory comments posted on the Star website.

The court first addressed the Star’s claim that the Indiana “shield” law protected the newspaper from being compelled to review the commenter’s identify. Many states have laws that protect news organizations and their news gatherers (i.e., reporters, photographers, etc.) from having to reveal their sources of information. Journalists often promise confidentiality to individuals who would otherwise not provide those journalists with information which only those individuals may possess. Consequently, shield laws help insure that information will continue to flow to the public through the news media.

The Indiana shield law states that any person covered by the act (ie., someone employed as a news gatherer or editor) “shall not be compelled to disclose … the source of any information procured or obtained [during the course of that person’s journalistic employment] published or not published.” But what is a “source”?

The appellate court noted there were very few judicial decisions involving the shield law. But the court noted that the privilege not to disclose was absolute “only … to the extent a source is involved.” The plaintiff argued that the anonymous commenter in this case was not a source and that the commenter’s identity had not been obtained or procured by a person acting in an editorial role for the Star. He added that the Star had actually waived the privilege by noting on the web site’s Privacy Notice that the newspaper could release information to “respond to claims that any comment or materials submitted by you violate the rights of third parties.” The court noted, however, that the privilege not to disclose a source was held by the newspaper not the source of the information. Therefore, the Star‘s privacy policy did not control this case.

So the question became whether the anonymous commenter was a “source” as used in the Indiana statute. The Indiana statute does not define “source” so the court reviewed other similar state statutes as well as the generally accepted definition used by journalists that a source was a person or document that “gives information to a reporter in order to help write or decide to write a story.” Using this definition, the court noted that the comments were not posted on the Star website until after the Star published the article. The court also noted that there was no evidence the Star used the commenter’s information to report on the initial story about Junior Achievement.

The court stated that the definition of source it elected to use was supported by an Illinois trial court order in Alton Telegraph v. Illinois, No. 08-MR-548 (Ill. Cir. Ct. May 15, 2009). Alton also involved anonymous bloggers on a newspaper website who revealed information about a criminal defendant. The comments were posted after the Telegraph included a story about that defendant on its website. When the state’s attorney attempted to get the Telegraph to reveal the identity of the bloggers, the Telegraph relied on the Illinois shield law claiming that the statute allowed the newspaper to keep the identities secret. The Illinois trial court ruled that since the anonymous commenters did not provide information to the Telegraph prior to the publication of the on-line article, the commenters were not “sources” under the Illinois shield law.

The court next turned to the question of whether the First Amendment’s guarantee of free speech allows the Star to keep the commenter’s identity secret. Anonymous speech has been important in American history dating back to the 18th century anonymous pamphleteers urging American independence from the British. The appellate court noted, however, that for the plaintiff to be able to prove that the commenter’s posting was defamatory he would, as a public figure (as opposed to a private person) prove the commenter’s post was made with “actual malice” which is defined as posting the comment with “actual knowledge that [the posting] was false or with reckless disregard of whether it was false or not.” How can the plaintiff prove actual malice, the court asked, without knowing the identity of the commenter?

The court adopted a test to determine when the identity of an online commenter should be revealed. That test requires the plaintiff to (1) make reasonable efforts to notify the commenter that he/she is the subject of a subpoena or application for an order of disclosure and allow the commenter to oppose that subpoena application and (2) produce sufficient evidence to support every element of the plaintiff’s cause of action before disclosure of the commenter’s identity. The court believed that this test best balances the First Amendment free speech concerns and preventing defamatory speech.

The court ended its decision by noting that the Indiana Constitution’s guarantee of free speech was also adequately protected by the two-part test the court had adopted.

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