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View Full Version : Newspaper's online commenter can stay anonymous, for now, judge rules



LiberalNation
04-07-2010, 04:04 PM
http://www.courier-journal.com/article/20100407/NEWS01/4070395/1008/rss01

But Judge Jean Chenault Logue’s March 26 ruling, which appears to be the first of its kind in Kentucky dealing with this issue, may only be a temporary victory for the newspaper — and anonymous posters — because she adopted a multi-part test that, if certain criteria are met, would allow for the poster to be identified.

Wesley Browne, the attorney for Kymberly Clem, who claims she was defamed, said he will begin taking the steps necessary to satisfy the test.

Jim Adams, an attorney for the Richmond Register, declined to comment on the ruling.

The case began in March 2009 when Clem, a college student who'd been kicked out of a Central Kentucky mall because she was told the dress she was wearing — bought there the day before — was too short, filed a lawsuit against an anonymous person, who posted as “l2bme” on the Richmond Register web site.

The poster, whose comment appeared Aug. 13, 2008, under an online story headlined, “You can buy it at the mall, but you can't wear it there,” claimed to have the true story behind Clem's eviction — that she had exposed herself to a woman and her children who remarked on the dress.

A furious Clem alleged defamation, with Browne filing a lawsuit against l2bme and subpoenaing the newspaper to provide the poster’s identity.

As part of its defense, the Register cited the First Amendment rights of the paper and the poster to speak freely in a public forum — the same defense used by other papers with online sites and bloggers.

But the Register also used a more novel argument — claiming l2bme was a protected source under the Kentucky Reporter's Shield Law because one of its reporters wrote a story about Clem's lawsuit and mentioned the comment. The shield law protects journalists from having to disclose confidential sources of published information.
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Logue ruled, however, that the comment was not protected under the shield law as it was not obtained by a reporter for the newspaper. “Mere posting on a newspaper Web site does not grant the poster … immunity,” the judge wrote.



Still, Logue noted that “it is well settled that the First Amendment shelters the right to speak anonymously.”

She cited a federal case in Washington in which shareholders of a company called officials “lying, cheating, thieving, stealing lowlife criminals” in anonymous online postings. A judge denied the company’s attempt to obtain the posters’ identities, ruling that if “Internet users could be stripped of that anonymity … this would have a chilling effect on Internet communications and thus on basic First Amendment rights.”

But Logue noted that that court and those in other states have instituted a multi-part test that could lead to the courts compelling disclosure of anonymous posters if the right criteria are met, and she adopted parts of these tests.

Under Logue’s ruling, Clem, or others filing similar suits, would have to make a reasonable effort to locate and notify the anonymous commenter and give appropriate time for the poster to respond; submit sufficient and specific evidence of defamation; and prove that the information being sought is necessary for the lawsuit to proceed.

Clem, Logue argued, has not noted specifically what was defamatory or made a reasonable effort to notify the poster and give that person time to respond.

Logue, who notes that the Register took down the comment and banned l2bme from further posts, acknowledged that she “professes limited knowledge of how one would locate” the anonymous commenter.

She said notice may be given through a court order requiring the Internet service provider for the newspaper to notify the commenter of the pending lawsuit, if the service has that capability.

But Browne said l2bme already has been properly notified, through newspaper and online postings about the lawsuit in the Richmond Register and other papers and blogs.

“In our view, l2be me is already aware this is pending,” Browne said, adding that it has been a year and he has no knowledge that the poster has come forward.

He said Clem is “resolute” in pushing forward with the lawsuit.

“She wants to know who is behind this.”

Reporter Jason Riley can be reached at (502) 584-2197.
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