• by Wendy Davis  @wendyndavis, December 11, 2008

Judges of Maryland's highest court heard arguments this week about whether courts could order news organizations to reveal the names of people who posted online comments that were critical of a local business owner.

The judges are still considering the case, but at least some of them appeared to be poised to rule that the owner's right to sue the commenters for defamation outweighs the users' First Amendment right to speak anonymously.

"If there's no First Amendment right to slander somebody, you can't slander someone anonymously," Judge Joseph F. Murphy Jr. of Maryland's Court of Appeals said during the argument.

The case stems from comments posted to NewsZap.com, community news sites operated by Independent Newspapers, Inc. In one post, a commenter described a Centreville, Md. Dunkin' Donuts owned by local business person Zebulon Brodie as "one of the most dirty and unsanitary-looking food-service places I have seen," according to court papers. Another post complained about conditions outside the shop.

Brodie filed a lawsuit against Independent Newspapers for defamation on a NewsZap site and also sought to subpoena identifying information about individual commenters.

Brodie's allegations against the site were dismissed under the Communications Decency Act, which immunizes Web sites from libel for comments posted by users. But the trial judge ordered the news company, which collects registration information, to disclose data that would reveal the commenters' identities.

Independent Newspapers appealed, arguing that Brodie didn't make a strong enough case for defamation to force the news site to reveal users' identities. Specifically, the site says that Brodie should have alleged not only that damaging statements about the Dunkin' Donuts were made, but also that they weren't true, because statements are only libelous if they are false.

"A plaintiff should not be able to identify anonymous Internet speakers for no more than the cost of hiring a lawyer and filing a complaint. Rather, the Court should hold that a plaintiff must make a factual and legal showing that impingement on the right to remain anonymous is justified because the plaintiff has a realistic possibility of succeeding in the litigation," Independent Newspapers argued in its brief.

Paul Levy, a lawyer from the consumer advocacy group Public Citizen, which represented Independent Newspapers, said that requiring the site to disclose users' identities could chill commentary on blogs. "A ruling in the plaintiff's favor here would send the message, 'Don't criticize people who may sue you--whether your criticisms are valid or otherwise--because they get to find out who you are simply by filing a complaint," Levy told Online Media Daily.

Similar cases are cropping up in other courts around the country. In one recent lawsuit in Oregon, a judge ruled in October that the Portland Mercury need not disclose the IP address of a commenter who posted online because the state has a shield law that states that journalists need not reveal the any information gleaned while reporting. The court there treated the commenter's IP address as information received in the course of news gathering.