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Web takes anonymous free speech to new level

By - Last modified: August 3, 2012 at 10:19 AM

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With the advent of the Internet and its explosive use, the ability of an individual to comment or “speak” via the Internet has become commonplace. It is routine now to have the ability to comment on news articles, Internet videos, political events and similar activities via public forum on media websites, blogs and similar sites, which invite public reaction and comment.

We no longer have to write a letter to the editor; now we can merely click on an article or entry and, after supplying basic information, such as an email address, password and “screen name,” our comments can be seen around the world. There is no requirement that the screen name given is our real name and in fact, hardly anyone uses information that would easily identify them.

This type of quick access, worldwide publication and anonymity inevitably impacts the free speech rights of the poster and the rights of institutions and individuals commented upon to be protected from defamatory statements. Legal concepts derived decades and sometimes centuries earlier struggle to keep up with the nuances of digital platforms.

The right to speak anonymously is a fundamental concept that has been embedded in American law for decades. This right has enjoyed “robust protection,” particularly when it applies to commentary regarding political issues, political campaigning and the qualifications of candidates for political office.

Both Pennsylvania and the federal courts have recognized a constitutional right of anonymous free speech. Pennsylvania’s courts have stated that such a right is deeply rooted within the public policy of Pennsylvania. The courts have similarly found no reason to vary from this fundamental right when the speech involved occurs anonymously over the Internet.

This right has been guarded because of fear of the chilling effect that could occur from exposing individuals commenting anonymously on matters of public concern, such as elections and candidates running for office. To narrowly limit the ability to speak anonymously or allowing anonymous posters to be unmasked too easily would have the direct effect of dissuading individuals from voicing their opinions on candidates and political issues to the detriment of the democratic principles supporting such comment.

However, the right of free speech in general and the right of anonymous free speech in particular is not without limitation. The general laws of defamation still apply. Fortunately, most courts that have addressed the issues of persons claiming defamatory comment concerning them have had to satisfy rigorous tests before being permitted to reveal the identity of any anonymous speakers posting comments on the Internet.

Pennsylvania recently addressed this issue in a decision of the Superior Court in Pilchesky v. Gattelli. In that case, an individual alleging defamation sought to have the identity of several anonymous posters to an Internet message board revealed for purposes of bringing a defamation action. The plaintiff was a local government official.

The court, after reviewing decisions from other jurisdictions addressing similar issues, adopted a four-part test that a party must satisfy before a court will require the disclosure of an anonymous speaker.

First and foremost, notice must be provided to the anonymous speaker to allow them sufficient opportunity to defend against the disclosure of their identity.

Second, the party must demonstrate a prima facie case of defamation, which requires sufficient but not conclusive evidence of defamation (except as to proof of actual malice in appropriate cases).

Third, the party seeking disclosure must file an affidavit with the court indicating that the poster’s identity and the threatened legal action are sought in good faith and not for purposes of harassment, that the identity is unavailable by other reasonable means and that the information sought is fundamental to a claim to secure relief.

Finally, the court must conduct an important balancing test whereby it must balance the robust right of free speech against the case submitted by the party seeking disclosure. The court underscored that comments on matters of public importance or those that criticize public officials are entitled to robust protection.

As with many areas of the law, the digital age presents new circumstances under which existing tenants of law must be examined and modified, if applicable. However, some fundamental rights, such as that of anonymous free speech, need not to be sacrificed in the attempt to keep up with changes in society brought on by digital communication.

Since the use of social media, Internet, message boards, public forum and comment sites will only increase, these will continue to be issues with which society and the courts must wrestle. Our courts have clearly signaled that they will continue to protect the right of anonymous free speech while recognizing, under limited circumstances, the abilities of those seeking redress from alleged defamatory comments. If nothing else, we are assured of continued evolvement of this area of the law.

A partner with Nauman, Smith, Shissler & Hall LLP, Craig J. Staudenmaier chairs the firm’s Right-to-Know/Media Law Practice Group and is the former co-chairman of the Pennsylvania Bar Association’s Bar/Press Committee.

Write to the Editorial Department at editorial@cpbj.com

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