Daniel Aaronson | Daily Business Review 11/21/2013

One of the most common questions a lawyer hears is, “Can I be sued” for a particular action. As any first year law student will tell you, anyone can be sued for anything, at any time. Yet anonymous posts on blogs come close to disproving this rule.

Growing up in the 1950s and 1960s, we were told that baseball was the national pastime. Those who grew up a few decades later may have learned that football is actually the pastime of our country. Now, watching my kids and the computer-savvy people around me, the new national pastime may just be the Internet, texting and of course, blogging.

Unlike baseball and football, where true avid fans of the sports know the rudimentary rules by the time they’re 8 years old and can recite them by the time they’re 10, users who engage in blogging have no concept of the rules or believe there are no rules. They sit back with their hands on keyboards feeling invulnerable with no concern for any negative repercussions because of the anonymity.

Generally, bloggers have a right to feel this way. The Supreme Court of the United States has held that anonymous speech is constitutionally protected. The basis of this ruling is simple—as a nation, we have decided that the marketplace of ideas and thoughts, especially in the political forum, should have no boundaries. Many thoughts would not be disseminated for fear of repercussion towards those who wish to speak them. If anonymous speech was not allowed, the majority viewpoint, with its numbers, power and even peer pressure, could silence the minority perspective. However, we are a democratic country where majority rules, the true basis of our freedoms lie in our protection of minority rights. To protect minority rights, including unpopular speech and those different voices clamoring to be heard, we embrace the right to anonymous speech.

No speech can be more anonymous than speech on a blog from a writer with a pseudonym. Most blogs protect the anonymity of the blogger with privacy policies. Bloggers are given assurances that they can engage in anonymous speech, which fosters wide and unfettered discussions. This begs the question: Does this anonymity allow bloggers total immunity for what they say and write? The answer is not quite, but it’s pretty close.

Recently, national attention has turned to cases in which rape victims have been cyber-stalked and bullied, and the end result was suicides or attempted suicides. This stalking was not done by the way of blogging, but rather on Facebook and other social media posts. Nonetheless, should a blogger use a particular blog in a manner that could be interpreted as cyber-stalking, one wonders whether the website owners would turn over the blogger’s identity or fight a subpoena. In a practical sense, how many judges would not side with a prosecutor in ordering that the identity of the blogger be revealed if there was probable cause to believe that the blogger had committed a criminal act?

It is more likely that the identity of the blogger will be sought in the civil arena. Claims of defamation and libel, along with interference in a business relationship and trademark or copyright infringement, are the ones that come to mind most readily. In these situations, a plaintiff believes that an anonymous blogger made a statement that is defamatory or libelous and seeks the true identity of the writer through the blog, by way of demanding the IP address. The IP address then leads to the identity of the person to be sued.

Most website owners will not voluntarily turn over the IP address of the user. Blogs usually promise the blogger anonymity unless compelled by a court order, as anonymity of bloggers is essential for the success of the site. Therefore, the offended person must bring suit against the site to force disclosure of the IP address.

Should a lawsuit be brought, most website owners will defend the anonymous poster’s rights, at least until there is a court order. This is for both altruistic reasons and for protecting themselves from a suit by the anonymous blogger should the revelation of his or her identity lead to a lawsuit and negative judgment. The blog site owner is also likely to inform the IP address holder of the suit seeking to reveal the IP address, so the IP address holder can then intervene in the suit under the anonymous name.

Before a court will order the site owner to turn over the IP address of the blogger, the burden is on the one seeking the identity of the blogger to show that the statements themselves are defamatory. Defamatory statements are, first of all, statements that are not true. The first hurdle is to make a preliminary showing that the statements are false. Secondly, they must be directed to or concerning the one seeking the disclosure. And thirdly, they must reasonably be capable of having a defamatory meaning. For example, Tom does not have a defamatory cause of action because Blogger X said that Jim has gray hair. The comment was not directed toward Tom and the statement that Jim has gray hair is not capable of having a defamatory meaning, even if untrue.

Additionally, the comment isn’t defamatory if it’s “pure opinion.” Everyone has a right to his or her own opinion and has a right to express it. Should the blogger be expressing opinion as opposed to stating a fact, there is no defamation. An opinion or a belief is quite different than a statement of fact. Similarly, hyperbole also falls within the realm of protected speech. Comments that no one could take seriously as being true or statements that are obvious exaggerations do not give rise to a viable claim of defamation.

Bloggers often get carried away. What starts off as obvious opinion, through the back and forth nature of a blog, tends to degenerate into statements of fact (as well as curse words, scatological references and the occasional nasty comments about one’s mother). A line that may appear to be a statement of fact, when read in context with the previously posted statements by the blogger, may indicate that the individual posts are a continuation of a previously-asserted opinion.

In essence, bloggers do not enjoy total immunity and total anonymity for what they write. The bar is quite high for their anonymity to be taken away and for someone’s identity to be revealed. In the rare criminal case of cyber bullying or stalking by way of blogging, there is a greater chance of that anonymity being lost to the needs of the state to prosecute. But in the more conventional situation of a civil suit for defamation or interference with a business relationship, truth, opinion, and hyperbole provide even more powerful defenses for the blogger than anonymous speech offers.