Maryland Court Protects Online Anonymity

Published May 1, 2009

In a case hailed as a victory for First Amendment rights on the Web, Maryland’s highest court has ruled Internet users who make anonymous postings have the right to keep their identity secret.

Overturning a lower court’s ruling, the Maryland Court of Appeals decided in March against forcing a publishing company to divulge the identities of three anonymous Internet writers who posted negative comments regarding the cleanliness of a Centreville, Maryland Dunkin’ Donuts.

The comments were posted on, an online forum run by Independent Newspapers Inc. of Dover, Delaware.

The owner of the shop on the Eastern Shore of Maryland, Zebulon J. Brodie, claimed the anonymous posters—who went by screen names such as “CorsicaRiver” and “Born & Raised Here”—defamed him.

Victory by Technicality

The appeals court, deciding against Brodie on a technicality, said he was not entitled to learn the identities of the posters because he misidentified the forum participants in his complaint.

Andrew Grossman, senior legal policy analyst for the Washington, DC-based Heritage Foundation, agreed with the court’s ruling, saying it correctly “lays out a very high burden of proof for the plaintiff.”

“These disputes should not be in our courts,” Grossman said. “These are private matters that should be solved anywhere else. They should not be litigation.”

Guide for Future Cases

The court gave its ruling as a guide for trial courts to apply to “balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation.”

In a defamation case in which “anonymous speakers or pseudonyms are involved,” the court ruled, courts should require the plaintiff to attempt to notify the anonymous posters that they are the subject of a subpoena. That notification should come in the form of messages posted to the forum in question, and the poster should be given sufficient time to respond, the court held.

The plaintiff must then hand over the exact statements in question so the courts can decide whether they are defamatory. Then, if all requirements are met, the ruling reads, the court must consider the anonymous poster’s right to free speech against the strength of the defamation case and the necessity of disclosing the poster’s identity.

Grossman said the procedure the appeals court outlined “lays out a reasonable process on when to overturn a case. It’s a workable framework.”

Protecting Online Anonymity

The court’s decision was correct, says Steven Titch, an analyst for the Reason Foundation in Los Angeles.

“In order to unmask the anonymity of a blogger, you really have to demonstrate the statement was indeed libelous, which the owner couldn’t do” in the Maryland case, Titch said. “You have a right to fair comment, and truth, which is the ultimate defense.

“Free speech has to be protected,” Titch added. “You have to prove actual malice, and you have to prove it was a lie. It would be different if they said they guy was back there poisoning the donuts. But if the place was dirty, you can say [so].”

Free Speech Was Issue

Titch and Grossman agree on another point: The principle at stake here is free speech.

“How could this affect other individuals?” Grossman asked. “Each one of these cases where people are unmasked and have to pay huge amounts to defend themselves, results in people [becoming] less likely to use these forums,” he said.

Titch said there needs to be a broad “right to remain anonymous” on the Web.

“For what it’s worth, it’s a choice that should remain with the poster,” Titch said. “There are places where you might feel comfortable posting under your own name, or places you don’t. But you shouldn’t be forced to give your identity to express your opinion on the Internet.”

Mask of Anonymity

The risk when government tries to lift the mask of anonymity, Titch said, is that the robustness of the Internet will be diminished.

“The culture that grew up on blogging, … that culture is one of anonymity,” Titch said. “It is the way things are, and the Internet has flourished.”

Elisha Maldonado ([email protected]) writes from California.