 The right of a news reporter or media organization to protect the confidentiality of its sources is well recognized in nearly every state. But what about the right to protect the identity of someone who comments anonymously on a news organization’s website or blog? In an emerging trend, some courts have recently held that traditional state shield laws meant to protect a reporter’s source also protect anonymous commenters. |
| State shield laws provide varying degrees of protection. Whether they can be used to shield the identities of anonymous commenters depends on how broadly state statutes reach. Only a handful of shield laws have been interpreted to protect anonymous website commenters, but these cases illustrate a very important trend. As the relationship between reporters and sources evolves with the Internet, these courts are recognizing that the law must also change in a way that continues to protect the identities of reporters’ sources and the public’s right to know together with the right of website commenters to remain anonymous. |
| Shield Laws and Reporter’s Privilege – a Brief Overview Every state except Wyoming provides some type of protection against compelling a reporter to reveal a confidential source in state court. In 39 states plus the District of Columbia, that protection is provided through state shield laws.1 In the other states, it is recognized either in state constitutions or through the common law. Protecting reporters’ sources and information is vital for the public interest. Without being assured that the information and identities provided to a reporter will remain confidential, many people would be too afraid to speak to the press about matters of public importance. And the public would be kept in the dark. |
| There are different types of shield laws that offer varying levels of protection for a reporter’s sources. The level of protection depends on whether a source and the information the source provides is confidential and whether the information is being sought in criminal or civil court. For example, New York provides an absolute privilege for the protection of confidential sources and information in both criminal and civil court.2 But, if the information being sought is not confidential, then courts will apply a qualified privilege balancing test. A reporter can be compelled to testify about non-confidential information if there is a “clear and specific” showing by the party seeking disclosure that the material sought (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source.3 |
| Other states, such as New Jersey, distinguish between civil and criminal cases. While the privilege is absolute in civil cases, in criminal cases the privilege can be overcome by a criminal defendant upon a showing of relevance, materiality, necessity, and unavailability from any other source.4 |
| In federal court, however, there are limited protections for reporters and their sources. There is no federal shield law, though different versions of proposed statutes have passed in both the House and the Senate. Consequently, reporters subpoenaed in federal court or before federal grand juries cannot rely on statutory protection. There also is no uniformly recognized First Amendment-based reporter’s privilege5 and there have been no instances where a First Amendment reporter’s privilege was used to protect an anonymous commenter. |
| The Protection of Anonymous Commenters as Sources of Information State shield laws provide much stronger protection for a reporter’s sources, and this protection is holding up in the Internet age. The Internet allows people to not only read news reports, but to become an interactive participant as well. With the click of a button and a few key strokes, anyone can leave an anonymous comment or tip regarding an article or at a website. The ability to comment anonymously on news articles is of vital importance. Without being assured that their identities will remain unknown, many readers would not comment for fear of retaliation or retribution. While admittedly some comments that grace news web sites are of little social and political value, many others share information that is vital to the public. Thus, there is value to the law’s protection of all anonymous speech on the Internet. Just as a source must be assured confidentiality in order to share valuable information with a reporter, someone commenting on a news website must also be assured that their identity and information can be protected from eager plaintiffs and overzealous prosecutors. Many news organizations agree, and have gone to court to protect the identities of these John Doe commenters. |
| The attempted unmasking of anonymous commenters arises mainly in two different contexts. In civil cases, it happens most often when a defamation lawsuit is brought against the anonymous writer. The Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230 et seq., immunizes website owners and publishers from defamation lawsuits.6 So, in most states plaintiffs file a lawsuit against a John Doe defendant, and then subpoena the Internet Service Provider (“ISP”) or news organization for the identity of the anonymous Internet speaker in order to proceed with their lawsuit. By contrast, in New York, plaintiffs may seek pre-action disclosure of an anonymous blogger by bringing a special proceeding under CPLR 3102 (c).8 |
| In criminal cases, it arises usually when criminal defendants or prosecutors subpoena a news organization for the identity of an anonymous writer who commented on a news article about the underlying crime. The party issuing the subpoena is usually seeking the commenter’s testimony. |
| More parties to litigation are attempting to unmask anonymous speakers on the Internet. In many instances, courts apply a balancing test that weighs the merits of a plaintiff’s claim against the defendant’s right to remain anonymous, among other factors.9 This is the most common way of determining whether to “out” an anonymous speaker. But in another string of cases, a more novel approach has developed. Some news organizations facing subpoenas demanding information about the identities of anonymous commenters have raised state shield laws as a defense. |
| One of the first cases in which a news organization successfully used a shield law to protect an anonymous commenter was Doty v. Molnar. A former candidate for the Montana Public Service Commission, Russ Doty, sued his opponent for defamation in 2008. To help him prove his case, he subpoenaed the Billings Gazette for the IP and email addresses of two people who commented anonymously on the paper’s website. The Billings Gazette successfully argued that the state shield law protected the newspaper from revealing the identities of the commenters. |
| In a ruling from the bench in the fall of 2008, Judge Todd Baugh quashed the subpoena and ruled that Montana’s shield law, the Media Confidentiality Act, protected the newspaper from having to reveal the identities of the anonymous commenters.10 The act is broad, he noted, and protects news entities from having to disclose “any information obtained or prepared or the source of that information in any legal proceeding if the information was gathered, received, or processed in the course of his employment or its business.”11 |
| Shortly after Doty v. Molnar, a court in Oregon applied the Oregon shield law to anonymous commenters. A Portland-area business man, Terry Beard, filed a defamation lawsuit against a John Doe defendant who had made some anonymous remarks about Mr. Beard on a blog published by the Portland Mercury. Beard subpoenaed the Portland Mercury for the anonymous commenter’s IP and e-mail addresses. Judge James E. Redman of the Clackamas County Circuit Court ruled that the identity of the anonymous commenter was protected under the Oregon Media Shield Law.12 |
| Oregon’s law protects both the source that provides information, and the information itself. Specifically, it protects “any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public,”13 and it defines information as “any written, oral, pictorial or electronically recorded news or other data.”14 The court ruled that the comment on Portland Mercury’s blog was “data” provided to the news organization, and was protected under the statute. The Oregon case differs from the Montana case. In Oregon, the basis for the decision was that that the data was protected, whereas in Montana the basis was that the source itself was protected. |
| In Illinois however, a court ruled that the state shield law did not protect the identities of anonymous commenters sought by a prosecutor in a high profile murder case. In the fall of 2008, an Illinois man, Frank Price, was indicted for the murder of a 5-year-old child. The Alton Telegraph reported about the indictment, and the online news article drew several comments. The prosecutor subpoenaed the Alton Telegraph for the names, addresses, and IP addresses of five anonymous commenters who had revealed personal knowledge of the defendant and his past actions.15 |
| The news organization argued that the identities were protected under the Illinois Reporters’ Privilege Act.16 The Act defines a source as “the person or means from or through which the news or information was obtained.” The Court held that the commenters were not sources because the writers commented on the news article after it was published, and the comments were made with no input or discussion from the reporter. The court applied the balancing test required under the Illinois shield law in criminal investigations and held that the news organization could be compelled to reveal the identities of two of the five commenters because the information was relevant and the state had exhausted all other possibilities for obtaining the information. In balancing the news organization’s right to protect the identities of the commenters with the state’s right to prosecute someone who allegedly murdered a child, the court found that the state’s interest outweighed that of the newspaper. |
| The court did recognize, however, the importance of preserving the anonymity of online speech and urged the state legislature to take up the issue. In the court’s words, “A lack of these protections and/or anonymity might well have a chilling effect on future bloggers. … These bloggers may have become potential sources of leads for a reporter.” Though there have been only a handful of cases so far, it is likely that more state shield laws will be put to the test. It is important that courts apply these laws broadly so that those who comment on news organizations’ websites can remain anonymous. |
| Compelling news organizations to reveal the identities of these anonymous commenters would surely chill the speech of future commenters, who would become afraid to contribute valuable speech that furthers public debate on important issues. As the Alton Telegraph court noted, these commenters could be providing information that could lead to the unearthing of important news stories. |
| As these cases continue to arise, other courts should follow the lead of Montana and Oregon by recognizing the importance of preserving a reporter’s privilege in the digital age. |
| Samantha Fredrickson is the Nassau Chapter Director of the New York Civil Liberties Union in Hempstead. This article represents the opinion of the author, and does not necessarily reflect the views of the NYCLU or the Nassau County Bar Association. |
| 1. The Reporters Committee for Freedom of the Press, Reporter’s Privilege Compendium, http:// www.rcfp.org/privilege/ (a listing and comprehensive analysis of all state shield law protections). 2. NY Civil Rights Law § 79-h 3. NY Civil Rights Law § 79-h(c) 4. N.J. Stat. Ann. § 2A:84A-21 5. Branzburg v. Hayes 408 U.S. 665 (1972) 6. Gibson v. Craiglist, Inc., 2009 WL 1704355, *3 (S.D.N.Y.) 7. See, e.g. Doe v. TS No., CV08030693 (Or. Cir. Ct. Sept. 30, 2008) 8. See, e.g., Matter of Cohen, Petitioner, to Compel Disclosure from Google, Inc. And/or its Subsidiary Blogger.com., 25 Misc.3d 945 (Sup. Ct., NY County 2009) 9. See, e.g. Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) 10. Doty v. Molnar, No. DV 07-022 (Mont. Cir. Ct. Sept. 3, 2008) 11. Mont. Code Ann. § 26-1-902 12. Doe v. TS No., CV08030693 (Or. Cir. Ct. Sept. 30, 2008) 13. Or. Rev. Stat. 44.520 1(a) 14. Or. Rev. Stat. 44.510 (1) 15. Alton Telegraph v. Illinois 08-MR-548 (Ill. Cir. Ct. May 15, 2009) 16. 735 ILCS 5, 8-901 to 8-909. |
