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davidh
October 6th, 2005, 03:48 PM
Court Rules in Favor of Anonymous Blogger

http://news.yahoo.com/s/ap/20051006/ap_on_hi_te/blogger_lawsuit

I think that this decision is generally a good thing.

I'm concerned that treaties between USA and foreign gov'ts and org's would allow communists, terrorist fronts, dictators, malevolent businesses, multinational companies, etc. to attack American citizens in American courts in future. So such precedents need to be built up to defend against future invasions of privacy and free speech.

BTW, can somebody explain the last sentence of the following paragraph to me in plain language?

"Under the standard adopted by the Supreme Court, a plaintiff must first try to notify the anonymous poster that he is the subject of subpoena or request for a court to disclose his identity, allowing the poster time to oppose the request. The plaintiff would then have to provide prima facie evidence of defamation strong enough to overcome a summary judgment motion."

David H.

yankeeharp
October 6th, 2005, 04:43 PM
Court Rules in Favor of Anonymous Blogger
BTW, can somebody explain the last sentence of the following paragraph to me in plain language?

"Under the standard adopted by the Supreme Court, a plaintiff must first try to notify the anonymous poster that he is the subject of subpoena or request for a court to disclose his identity, allowing the poster time to oppose the request. The plaintiff would then have to provide prima facie evidence of defamation strong enough to overcome a summary judgment motion."

David H."If somebody wants to know your name when you post anonymously, first they have to try to get in touch with you to let you know they're trying to find out who you are, then they have to give you enough time to prove to the court why you should be able to remain anonymous, then they have to prove to the court that you defamed them so bad if they still want legal help to find out who you are."

Judy G. Russell
October 6th, 2005, 04:56 PM
"...then they have to prove to the court that you defamed them so bad ..."No, they don't have to prove that you actually defamed them. That's a jury decision that is made later. They only have to show that they have enough evidence to survive a legal motion to dismiss (a very low standard, generally, although higher if they are public figures since robust political speech about public figures is something to be protected greatly).

If there is no way as a matter of law that they would ever be allowed to ask a jury to find that they had been defamed (in other words, if they had no legal evidence to support their claim), why should they ever be allowed to insist on finding out who you are?

davidh
October 6th, 2005, 06:19 PM
If there is no way as a matter of law that they would ever be allowed to ask a jury to find that they had been defamed (in other words, if they had no legal evidence to support their claim), why should they ever be allowed to insist on finding out who you are?

So, if Mr. A did a "good" deed, and I say that he never did it and there is public record or other proof that he did, then he could have sufficient evidence to prove that I defamed (anonymously).

OTOH
If I claim that Mr. A. did a crime and/or wronged Mr. B non-criminally (e.g. broke contract) and there is no public record or positive evidence that Mr. A in fact did so, then the judge should be willing to hear out Mr. A further, and possibly force me to reveal my identity, etc.

Did I get the gist?

David H.

Judy G. Russell
October 6th, 2005, 09:11 PM
So, if Mr. A did a "good" deed, and I say that he never did it and there is public record or other proof that he did, then he could have sufficient evidence to prove that I defamed (anonymously). OTOH If I claim that Mr. A. did a crime and/or wronged Mr. B non-criminally (e.g. broke contract) and there is no public record or positive evidence that Mr. A in fact did so, then the judge should be willing to hear out Mr. A further, and possibly force me to reveal my identity, etc. Did I get the gist?I'm not sure, because I don't quite understand your first example.

Let's start by making sure we all understand what defamation is in the law. A good understanding comes in this law review article (http://www.law.harvard.edu/students/orgs/hrj/iss13/docherty.shtml):

Defamation is a public communication that tends to injure the reputation of another. It includes both libel (written defamatory statements) and slander (oral ones). The definition of defamation varies from jurisdiction to jurisdiction, but “there is common agreement that a communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts only the plaintiff’s feelings, is not actionable.” People should be tough enough not to be injured by such statements, which would flood the courts if actionable. The U.S. Restatement (Second) of Torts defines defamation as a communication that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ England, birthplace of the common law, has a similar definition. One court framed the question as whether “what has been published . . . would tend in the minds of people of ordinary sense to bring the plaintiff into contempt, hatred, or ridicule or to injure his character.’ Other common tests include: ‘lowering the plaintiff in the estimation of right-thinking people generally,’ ‘injuring the plaintiff’s reputation by exposing him to hatred, contempt or ridicule,’ and ‘tending to make the plaintiff be shunned and avoided.’ Elements shared by most jurisdictions include a statement, publication to a third party or parties, and a potential to injure the plaintiff’s reputation.
The key defense to a claim of defamation is truth, and it is often said that truth is an absolute defense (you can say anything no matter how harmful as long as it is true). That's a bit of an overstatement, since there's a variety of defamation involving public disclosure of private facts (e.g., that person A is HIV-positive). Even if true, you may still be liable since you had no right to disclose that private fact.

So to make out a prima facie case of defamation, you'd have to show that you have enough evidence as a matter of law for a jury to find:

1. The other person made a false and defamatory statement about you;

2. The other person made the statement to someone other than you; and

3. You were damaged by the statement.

If you're a public figure of some kind, you may also have to show that the statement was made (published) with knowledge that it wasn't true or with reckless disregard of whether it was true.

You don't have to have enough evidence to guarantee that you'd win if the case went to the jury. You just have to show that you have enough (just barely enough is fine) that a reasonable jury could find for you -- and that's usually a very low standard.

davidh
October 7th, 2005, 12:05 AM
Judy,

Thanks for the detailed explanation. Made it significantly clearer.

David H.

Judy G. Russell
October 7th, 2005, 08:28 AM
Glad I could help. <she says, turning off the law professor mode>