Independent Newspapers, Inc. v. Brodie, 966 A.2d 432, 407 Md. 415 (Md. App. 2009) (full-text).
Independent Newspapers operates an Internet forum, which in March of 2006 included a “Centreville Eyesores” discussion thread containing statements posted by registered, but anonymous, users regarding Brodie, the fate of a house he sold, and the condition of a donut shop he owned. Brodie filed suit against Independent Newspapers and three Doe defendants identified by their forum usernames alleging defamation and conspiracy to commit defamation. Independent Newspapers filed a motion to dismiss or in the alternative for summary judgment, citing Section 230 of the Communications Decency Act (“CDA”) as a defense, and a protective order shielding it from being compelled to identify the the forum users.
The statements made by the Does named in the complaint related to Brodie’s decision to sell an allegedly historical home to developers, who subsequently tore it down, and the cleanliness of a donut shop he owned. He was chastised for his decision to sell but it was actually the purchasing developer that bore the brunt of the allegedly defamatory statements. Additionally, his shop was characterized as unsanitary.
Trial Court Proceedings
The circuit court dismissed Independent Newspapers from the case holding that as an "interactive computer service” it was immune from a suit of defamation based on the statements made by its users under CDA Section 230. However, the court also compelled Independent Newspapers to comply with the subpoena to reveal the identity of the three identified users.
Following a motion for reconsideration of the court order dismissed the cause of action based on the statements regarding the burning of Brodie’s former house because the statements actually referred to the developer and the developer's actions. Brodie responded with a letter stating that the posters actually responsible for the statements about the donut shop were two previously unidentified posters, and Brodie served another subpoena requesting the identity of the previously named posters as well as the two new ones. The trial court ordered Independent Newspapers to comply with the subpoena and Independent Newspapers appealed.
Appellate Court Proceedings
The appellate court held that the lower court judge had abused his discretion when he denied Independent Newspapers’ motion for a protective order because, at the time he compelled the identification of the Does, Brodie had not pleaded a valid defamation claim against any of them. When the judge dismissed the cause of action relating to the statements about the house there no longer existed a cause of action against the original three Does, and therefore, their identity could not be compelled.
Additionally, since the subsequent two new Does were not named in the complaint, which was not timely amended, the cause of action against them was barred by the statute of limitations at the time the court ordered disclosure of their identities. Since no valid cause of action existed the protective order should have been granted.
Guidance for Defamation Actions
Deciding the issue on a technicality, the court went on to offer guidance to future trial courts deciding online defamation cases. This case presented the court with the difficulty of balancing a speaker's First Amendment right of anonymity against the strength of a plaintiff's case and his right to litigate a cause of action for defamation. A speaker may not hide behind a pseudonym to avoid liability for defamatory remarks, but frivolous suits and low standards to "unmask" posters may serve to chill speech and "discourage debate on important issues of public concern."
According to the Maryland court only one other state supreme court has addressed the issue of disclosure of usernames in a civil law context, Delaware in Doe v. Cahill. The Delaware Supreme Court refused to apply a "good faith" standard that would have required the plaintiff to establish:
|“||(1) that they had a legitimate, good faith basis upon which to bring the underlying claim; (2) that the identifying information sought was directly and materially related to their claim; and (3) that the information could not be obtained from any other source.||”|
Instead the court applied a "summary judgment" standard, whereby the plaintiff would have to support his defamation claim with "facts sufficient to defeat a summary judgment motion" before it could obtain the identify of an anonymous defendant. Additionally the plaintiff would have to notify the poster "in a way that provides the poster with a reasonable opportunity to oppose the discovery request." One can only imagine that in the context of Internet speech, this manner of notice could include nontraditional means.
The court also looked to a number of other cases from varying jurisdictions that had applied other standards. In Columbia Insurance Co. v. Seescandy.com, the California court required only a showing sufficient to survive a motion to dismiss in order to compel the identity of anonymous posters. The "good faith" standard previously mentioned was upheld in Virginia in In re Subpoena Duces Tecum to America Online, Inc. The Superior Court of New Jersey, Appellate Division in Dendrite International, Inc. v. Doe, held that a plaintiff seeking to identify anonymous posters in a defamation action must present a prima facie case as well as "withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to the discovery request." The New Jersey court also required a plaintiff to post a message notifying the anonymous defendant of the discovery request on the same forum where the allegedly defamatory statement was made.
Determining that a "good faith" standard was too low and that a "summary judgment" standard was too onerous for potential plaintiffs, the Maryland court decided upon a "prima facie" standard with Dendrite-esque notice requirements. Therefore, in Maryland a trial court deciding an action for defamation concerning anonymous postings should
- (1) require the plaintiff to notify the poster of the pending subpoena;
- (2) suspend the action to afford the poster adequate time to respond;
- (3) require the plaintiff to identify and set forth the exact statements allegedly made by the poster;
- (4) determine whether the complaint has set forth a prima facie defamation action, and
- (5) balance the poster's First Amendment anonymity right against the strength of the plaintiff’s case.