Anonymous Defamation By Internet

My buddy's call was a bundle of nerves. He's a medical doctor at one of the big institutions in town and he was on the receiving end of a nasty rating on a rate-the-doc type website. The kind that everyone has access to and can anonymously post a rating and comments.

I accessed the site while he was on the phone and found him by state and name. Wow! He wasn't kidding. There was a his name, address and affiliations and next to it was a "4 thumbs down" rating. The rater had described him as a "butcher whose incompetency knows no bowndrees [sic]." "Stay away from this doc, he's a killer," the posting warned.

I asked my friend if he had any idea of his protagonist's identity. "No clue," was the terse reply, "but I want you to learn who wrote this and sue the hell out of him or her and that damn website. I haven't even had a cross word with a patient in more than a decade." My buddy had a reputation for being a careful physician. He was always highly rated by his peers, and as an academic, he stayed on top of all new developments. I had no trouble believing that someone was out to get him for something unrelated to medicine.

I reminded him that he had recently finished building a vacation house, and during the process had fired a couple of contractors and refused to pay a landscaper for trees of poor quality. "Any one of them," I suggested, " could be seeking revenge through this website. After all, it is no secret that you are a physician, and it is easy enough to learn the identity of your employer."

"Okay, start the legal process. Get the name of the anonymous poster and sue him or her and the site for defamation."

My friend was beside himself when I responded that it was highly unlikely the site would voluntarily reveal the name of the poster, that it was not a given that he could force the site to do so, and worse, that the website was immune from defamation liability resulting from the posting. His words were not repeatable.

"Look friend," I told him, " The issue of anonymous posting on the Internet is not novel." As late as last year, the Maryland Court of Appeals crafted a standard that Maryland trial courts must apply to balance the First Amendment right to anonymous speech on the Internet with the opportunity of the subject of the speech, here, the doctor, to sue for defamation.

Internet anonymity has always been a part of the culture. From the beginning, chat room users have been permitted to use a screen name and are not required to use their real name. "The right to speak anonymously is protected by the First Amendment," I advised. In this regard, the Supreme Court has held that:

Anonymous pamphlets, leaflets, brochures and even books have played a role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names.

But calling my friend a "butcher" and a "killer" when he wasn't even a surgeon would hardly appear to reach the level of "great works of literature." "Clearly," I replied, "anonymity of speech is not absolute and may be limited by defamation considerations, as libelous utterances are not speech protected by the First Amendment." I explained that a libelous utterance is one that tends to expose a person to public scorn, hatred, contempt or ridicule and discourages others from having a decent opinion of the person or associating with him or her.

I told him I thought we could obtain from the website the identity of the writer if we sue and (1) undertake efforts to notify the poster that he or she is the subject of a subpoena or an application for an order of disclosure, and post a message of notification of the identity discovery request on the website; (2) do nothing until the poster has a reasonable opportunity to file and serve an opposition to our application; (3) identify and allege the exact statement the poster purportedly made which we assert is defamatory; and (4) be sure we have properly pled a prima facie case of defamation in our complaint.

"If," I said, "we do each of these the court will then balance the poster's right to remain anonymous against the strength of the prima facie case of defamation we have pled and the necessity of disclosure of the poster's identity so you can pursue your claim."

"Okay, what about the website? Why can't we sue it for defamation?" my bud asked. I had to explain that suing the website operator for defamation in this case would not be successful. This is because a website operator is immune from tort-like claims that do not involve infringement of intellectual property under the Communications Decency Act if the defamatory statements were provided by a person separate from the operator and the operator engaged in no editing. This is because immunity is granted by the Act to a prospective defendant who serves merely as an interactive computer service, as this rate-the-doc site appears to do. Courts generally apply a three part test to determine immunity under the Act: (1) Is the defendant a provider of interactive computer services; (2) are the postings at issue information provided by another information content provider; and (3) does the plaintiff's claim seek to treat the defendant as a publisher or speaker of third party content?

Clearly, the effort to reach the poster and correct the contents was going to be difficult, time consuming, expensive and uncertain. And in the end, it would be unlikely that any judgment awarded against the poster would be collected.

My friend was not pleased. "Tell it to your U.S. Representative," I replied.