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Maryland Court Weighs Internet Anonymity 409

Posted by timothy
from the when-first-grade-never-ends dept.
Cornwallis writes "In a First Amendment case with implications for everything from neighborhood e-mail lists to national newspapers, a Maryland businessman argued to the state's highest court yesterday that the host of an online forum should be forced to reveal the identities of people who posted allegedly defamatory comments. The businessman, Zebulon J. Brodie, contends that he was defamed by comments about his shop, a Dunkin' Donuts in Centreville, posted on NewsZap.com. The shop was described as one 'of the most dirty and unsanitary-looking food-service places I have seen.' Talk about a Negative Nellie! At least the article didn't say the shop was the 'most dirty and unsanitary-looking food-service places I have seen.'"
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Maryland Court Weighs Internet Anonymity

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  • Anonymity (Score:5, Funny)

    by Anonymous Coward on Tuesday December 09, 2008 @02:00PM (#26048849)

    Anonymity is the bane of a civilized society and should not be tolerated on the Internet.

    • by lupis42 (1048492)
      Consider the source before marking the parent a Troll. (Flamebait, otoh, is harder to dispute).

      Anyway, anonymity is worthless in political speech if it can be bypassed by the force of government.
    • Zebulon J. Brodie is one of the biggest douchebag assholes that I have ever read about on the Internet.

      • Re: (Score:3, Informative)

        by raju1kabir (251972)
        You're confused. It's his donuts (at the Centreville Dunkin Donuts) that are made of douchebags. Slimy, dripping, thrice-used douchebags from the women's prison. Or at least that's what I heard.
  • Here comes the Eula (Score:5, Interesting)

    by bigattichouse (527527) on Tuesday December 09, 2008 @02:02PM (#26048871) Homepage
    In order to encourage open communication in [forum X] I agree to hold this list harmless, and waive any implied rights to defamation... blah blah blah or some such crap. Could a disclaimer/waiver hold up in court? They work for personal injury, why not "social injury"?
    • by Surt (22457)

      Why should the dunkin donuts' owner sign/agree to such a eula, though? He need only know that he WAS defamed, even if he doesn't acquire that knowledge through the website. He can have a third party retrieve the data for his court case.

      • Re: (Score:3, Funny)

        by bigattichouse (527527)
        How about the Eula completely encapsulating use of the site? Then the site could use the DMCA on the guy if he uses the content in open court... I think we need an opensource version of our legal system, this old one's got too many bugs.
        • by Surt (22457)

          No good. All he need do is be informed of the statement. Once the court case is in progress he can get the actual statement via discovery. There's no way in our legal system to protect the website, other than to establish precedent that they cannot be required to produce information in such cases, which is fairly likely to be the outcome here.

      • by theaveng (1243528)

        Even if the Dunkin Donuts owner learned the identities of the people, what would it accomplish?

        Last I checked defamation is protected by free speech. He would be laughed out of court.

        • Last I checked defamation is protected by free speech. He would be laughed out of court.

          That is untrue. See Wikipedia's article on US defamation law [wikipedia.org].

          • Re: (Score:3, Insightful)

            by Omestes (471991)

            But if he attached a qualifier "...that I've ever been too", meaning the claim might be truthful, and not defamation. IANAL but if a statement can be true, it isn't defamation. If I call Ted Bundy a murder it isn't defamation, if I call Ted Smith one (with no evidence) then it is, but if I say "In my opinion Ted Smith is a serial killer", then I'm in the clear.

            Also can't dirty be a subjective term? If I say that something is dirty, it doesn't make it defamatory.

        • Re: (Score:3, Informative)

          by Surt (22457)

          Defamation is definitely not protected speech. That's why there's a legal definition for it. Now, he would be laughed out of court because the speech in question is not defamation, but not the other way around.

      • by innerweb (721995) on Tuesday December 09, 2008 @02:43PM (#26049357)

        First, it needs to be determined if he was defamed. Maybe the accusations are true. Maybe the standards of the person who posted are higher than his store's standards. Maybe he is mad because he is being called out on something that he does not want to admit. Or maybe he does have a case and his is a clean and proper store. That is the first thing that needs to be determined. After that, if there is a case at that point, then talk about revealing who it is.

        I have worked in the food industry. I have seen what some places will let pass and it is disgusting. There are several restaurants in the local area that I tell people to avoid due to the sanitation and quality issues.

        I don't know whether or not the owner has done this, but the proper response of the owner would have been to contact the person via the board (if possible) and discover what the experience of that person was. We call this customer relations/service. A law suit like this is likely to only harm the reputation of the store owner. It will cause people who visit the store to focus even more on the same issues the *anonymous* party is focusing on.

        InnerWeb

        • by Surt (22457)

          I certainly agree with all of that (in terms of what he SHOULD do). I was really only considering what he CAN do. That he has made a bad choice is, I think, fairly obvious (although, one might argue that the increase in visits from maryland slashdotters checking on the filth levels may be yielding improvements in exposure for him, and at least one slashdotter has now reported the DD as 'spotless', so who knows).

  • by FredFredrickson (1177871) * on Tuesday December 09, 2008 @02:03PM (#26048883) Homepage Journal
    I should be allowed to silence dissent. I should be able to bully people through seemingly legal means so that their use of the first ammendment doesn't go unpunished. The first step is getting their names.

    If they've done nothing wrong, there's nothing to hide, right?
    • by AviLazar (741826) on Tuesday December 09, 2008 @02:40PM (#26049341) Journal
      Freedom of speech is important and required, but with that comes responsibility. The moment you use your freedoms to hurt someone, without legitimate basis (defamation) you are wrong.
      So if you want to say some shop is dirty, bad, etc - then you better offer up some proof. Otherwise you can get sued. This is nothing new - it has been going on for many years - why should the Internet be a place for people to spread malicious information without suffering the penalty? It shouldn't.
      • by MalleusEBHC (597600) on Tuesday December 09, 2008 @02:57PM (#26049551)

        So if you want to say some shop is dirty, bad, etc - then you better offer up some proof. Otherwise you can get sued. This is nothing new - it has been going on for many years - why should the Internet be a place for people to spread malicious information without suffering the penalty? It shouldn't.

        No, if you want to say some shop is dirty, you just say it. If someone wants to sue you for libel, the burden of proof is on them, not you. For libel cases, the burden of proof is usually very high. Generally, you need to make a false statement, you need to know it was a false statement, and you need to intend harm with your false statement, and the plaintiff has to prove all of this. A shop owner would have an almost impossibly difficult task proving that his shop wasn't dirty, the patron knew it wasn't dirty, and the patron intended to harm his business.

      • by mcgrew (92797) * on Tuesday December 09, 2008 @03:51PM (#26050285) Homepage Journal

        "This place is filthy" is an opinion. It is protected speech. "This place is disgusting" is also an opinion, and as such protected.

        "This donut shop has been cited by the health department for health code violations fifteen times" when it in fact hasn't been IS a statement of "fact" and libel, and as such unprotected.

        The hospital is FILTHY. Why else is it about the only place you can contract MSRA (flesh eating bacteria)?

        There is no such thing as "clean". The donut shop owner doesn't have a leg to stand on.

      • Re: (Score:3, Interesting)

        by beyondkaoru (1008447)

        i personally disagree with the idea that you can have 'freedom of speech' combined with the threat of lawsuits for said speech. if that were the case, china isn't that different. while i don't think that one should be allowed to yell at people, for example, communication between consenting parties should be allowed regardless of its content.

        in china, for example, you have (some) freedom to go onto a website and talk about tiananmen square. however, i hope you're ready to take "responsibility" four your spee

    • by RingDev (879105) on Tuesday December 09, 2008 @02:45PM (#26049383) Homepage Journal

      If they've done nothing wrong, there's nothing to hide, right?

      This is where it gets sticky.

      The store owner is claiming that they defamed him. The store owner (just like every other American) has legal protection from slander and libel. The only way to (legally) know for sure is to take the speakers to trial. It could be that they are not guilty of anything, or it could be that they are guilty of liable. But the only way to know for sure is to allow the shop owner to sue them.

      But who can he sue? John Doe? Even if John Doe is convicted of liable in abstinencia (err what ever it is called when you are tried with out being present) who would they punish for it? Libel I believe is just a tort, a civil crime. So no one is going to be arrested, and it is unlikely that an over worked DA is going to do a whole lot for you.

      Was it Jefferson who said, "Your right to swing your fist ends where the rights of my nose begin"?

      Same basic deal, your right to free speech ends when your words impead other peoples rights.

      Hate speech, inflammatory speech, screaming fire in a crowded theater, libel, slander... your speech is already limited.

      "Congress shall make no law ... abridging the freedom of speech" != You can make false statements that harm another person.

      Or if you'd like to switch it up a bit, I can exercise my 1st amendment rights as many people around here seem to think of them to inform your family, coworkers, significant other, x-girl friends, and neighbors that you are actually an un-register sex offender that has aids.

      I mean, it's the first amendment right? I can say what ever I want with absolutely no repercussions, right? /sarcasm

      -Rick

  • "We don't like your comment about some random Dunkin Donuts. Please turn over your entire internet history so that anyone on the planet can sue you for defamation."

  • WTF (Score:5, Insightful)

    by Capt James McCarthy (860294) on Tuesday December 09, 2008 @02:05PM (#26048905) Journal

    I didn't know opinion was liable.

  • by nurb432 (527695) on Tuesday December 09, 2008 @02:05PM (#26048917) Homepage Journal

    I think we have lost that right for the most part. Or rather we have been giving it away at every turn.

  • No mention however (Score:5, Insightful)

    by Gat0r30y (957941) on Tuesday December 09, 2008 @02:05PM (#26048919) Homepage Journal
    Of whether the dunkin donuts was actually dirty. Has this Brodie dude even provided the court with evidence that his establishment isn't unsanitary-looking? I mean, what if these weren't just a couple trolls, but real customers who saw that this particular dunkin donuts was really nasty?
    • Cheap lawyers? (Score:5, Insightful)

      by mangu (126918) on Tuesday December 09, 2008 @02:11PM (#26049009)

      whether the dunkin donuts was actually dirty

      If that's the case, wouldn't it have been cheaper to hire a janitor, instead of a lawyer?

      • Re: (Score:2, Insightful)

        by Samschnooks (1415697)

        whether the dunkin donuts was actually dirty

        If that's the case, wouldn't it have been cheaper to hire a janitor, instead of a lawyer?

        You can't pay a janitor with contingency fees.

      • Re: (Score:3, Insightful)

        by innerweb (721995)

        Ego gets so many people into trouble that way. Ego does not care about cost, only about feeling good (revenge?)

        InnerWeb

      • Re: (Score:3, Insightful)

        by gstoddart (321705)

        If that's the case, wouldn't it have been cheaper to hire a janitor, instead of a lawyer?

        Why fix the problem when you can stifle the criticism?

        Cheers

    • by TheSpoom (715771) *

      Technically it's the responsibility of the person who stated the comments to prove truth, not the other way around.

      That said, I agree with the other posts here: if the comment was stated as the summary says it was, it's an opinion, not a statement of fact, and thus can't be considered defamation.

      • by theaveng (1243528) on Tuesday December 09, 2008 @02:32PM (#26049269)

        That's not how it works.

        The business has to be able to prove that the comment caused financial damage, and sue for recovery of that damage. It is difficult to win that kind of case. Just ask anyone who tried to sue for negative feedback received on Ebay, claiming the negative hurt their business - so far no one's ever won.

  • by TaoPhoenix (980487) * <TaoPhoenix@yahoo.com> on Tuesday December 09, 2008 @02:06PM (#26048927) Journal

    "The question of the state of cleanliness is a material fact in the issue. Someone please post ZoeTroped pictures of the restaurant so that we may see its condition. It's only defamation if it's false."

    • Re: (Score:3, Insightful)

      by geekoid (135745)

      And if presented as fact; which it was not.

    • Re: (Score:3, Informative)

      by nedlohs (1335013)

      You would need to see all the food service places the commenter had seen, and rank them according to "dirty and unsanitary-looking"ness and then determine where the cutoff is for "one of the most".

      The language is so vague it is meaningless...

    • Re: (Score:3, Informative)

      by Surt (22457)

      Even if it is pretty clean or pretty dirty, the original poster is safe since he stated it in relative terms to his personal experience of other establishments. Just because he normally eats at 4 star restaurants and wandered into a DD by mistake does not invalidate his opinion.

    • by DragonTHC (208439)

      incorrect. It is never false. It can always be true since it is based upon one person's opinion and his experience of never having seen a dirtier place.

      Therefore, it is always true and not defamatory.

      • You could always get a subpoena requiring his mom to reveal what his room in the basement looks like. Assuming she's still paying for his electricity, it's safe to say he's seen it.

  • the arguments continued... that Zebulon would bring down a fleet of Vogon constructor ships upon the first ammendment if he should not be pleased.

    I posted that weak ass hitchhiker reference just because I was hoping to be one of the first people to say something diparaging without being anon... posting anon coward would be too obvious. perhaps the forums should use the coward moniker..seems to really put people in their place here!

    Well that, and Zebulon really made me think of mork from orc... :)

  • Maybe... (Score:3, Informative)

    by himurabattousai (985656) <gigabytousai@gmail.com> on Tuesday December 09, 2008 @02:10PM (#26048991)

    he should be more worried about the actual conditions of his store. I'm not naive enough to think that people don't use the internet to cause trouble, but if the comment is echoed throughout the forum, he's most likely got a problem on his hands. He may not like someone coming out and saying that his store is filthy, but if the comment is true, then this falls under the realm of informing citizens.

    Somehow, I doubt he wants the poster's name and address to send him coupons.

  • ... Why him?

    Why does some second tier fast food owner bring up one of the biggest precedent setting cases ever?

    Can he be bringing up a weak version of a precedent setting case to angle for a pro-rights victory?

  • by Glimmerdark (1229958) on Tuesday December 09, 2008 @02:11PM (#26049011)
    obviously the article and summary don't state exactly what the posters in question were talking about. but from what was given, - is there really any defamation going on? can the plaintiff prove that the statement was untrue? this comment was back in 06. the state of his store -now- hold little bearing on comments made 2 years ago. on top of that, the post seems highly opinionated. it's very possible that the poster's history with food service doesn't include many with less than pleasant standards. if that was the case, would the comment not be truly stated? and can a true statement be defamation in maryland? IANAL, so it's a serious question. and if there was no defamation, why bother with determining the first amendment standing of the issue, when there may well be no issue?
  • Um, no... (Score:5, Interesting)

    by kabocox (199019) on Tuesday December 09, 2008 @02:13PM (#26049033)

    I'm actually ticked at my local health inspector because they don't make this easy for my city. It's easy to look up this sort of info at other places
    http://www.txkusa.org/health/Food_Report.pdf [txkusa.org]

    Here is the real slashdot test. What did this guy happen to score on his local health inspection and how easy is that for his usual customers to obtain and see his results?

    I actually think the judge needs to throw this right out. This is an opinion about a food serving place and it isn't even that harsh. If he doesn't want to hear what his customers think of his place, then he doesn't need to listen to them. Maybe, just maybe he needs to clean up his shop and present a better public image for his customers?

    I wouldn't be surprised if his competitors are eating him alive.

    • actually think the judge needs to throw this right out. This is an opinion about a food serving place and it isn't even that harsh. If he doesn't want to hear what his customers think of his place, then he doesn't need to listen to them. Maybe, just maybe he needs to clean up his shop and present a better public image for his customers?

      It's so much easier to sue a single website for defamation (and hopefully make a few thousands in damages in the process) than to actually clean up your restaurant and serve halfway decent food (which costs effort and money). It's the law of the least effort, it works as well on people as it does on atoms and chemical reactions.

  • I don't understand how this could be a problem. He didn't falsely claim the store poisoned him or anything, he just simply stated out of the stores he's seen, it was one of the most dirty. That's just an opinion, and as far as I know we're still allowed to voice our opinion.

    • Re: (Score:3, Insightful)

      by danzona (779560)
      I don't understand how this could be a problem. He didn't falsely claim the store poisoned him or anything, he just simply stated out of the stores he's seen, it was one of the most dirty. That's just an opinion, and as far as I know we're still allowed to voice our opinion.

      The case is not about whether or not a person is allowed to state an opinion. The case is about whether or not somebody can use the power of the courts to find out who is "hiding" behind a nom de plume on the internet.

      This is the
  • Citation needed? (Score:4, Insightful)

    by girlintraining (1395911) on Tuesday December 09, 2008 @02:17PM (#26049093)

    Opinions are not statements of fact, something that apparently escapes even the highest court in Maryland. Slander and libel are passing off false statements as fact. This is why in the newspaper you always hear about the alleged crime, or how the government may be involved in massive surveillance domestically, or that the Steve Jobs Reality Distortion Field(tm) could be real.

    Hopefully the court will realize that one person making his/her own opinion known in a public forum (anonymously or otherwise) does not constitute a malicious attempt to degrade the reputation of another. If not, we may have to bump Florida from the 2008 dumbest judiciary system award.

    • Re: (Score:3, Informative)

      by russotto (537200)

      Opinions are not statements of fact, something that apparently escapes even the highest court in Maryland.

      The highest court hasn't ruled yet. And the question isn't about the merit of the libel claim anyway; it's about whether the plaintiff should have to demonstrate that merit before obtaining the identity of the defendant.

      IMO, even if taken as an absolute factual statement (which it was not), the claim is not provable either way -- there's no way the plaintiff can show the restaurant was not dirty and "

  • by MikeRT (947531) on Tuesday December 09, 2008 @02:22PM (#26049145) Homepage

    NewsZip.com is registered in Delaware, and this is a state court from another state, attempting to impose a court order outside of its jurisdiction. What, pray tell, gives them a basis to even think about doing this? I'd like to see the federal statute...

    • NewsZip.com is registered in Delaware, and this is a state court from another state, attempting to impose a court order outside of its jurisdiction.

      Increasingly (and scarily) jurisdiction is being extended through some pretty tenuous reasoning.

      That whole Lori Drew case was a woman in Missouri being sued in Los Angeles -- because the servers are located there.

      Sadly, the internet seems to have created cases where lawmakers still say "well, you're guilty here" -- which is kind of scary. Just think, there is a

  • My opinion: the judge should require the plaintiff here to first prove that the statements were defamatory. You don't need to know who said them to do that, the statements stand on their own. Once the owner has a ruling that the statements were in fact defamatory, then demand the identity of the person who made them so they can be held to account for them.

    • by cdrguru (88047)

      Do you not believe accusing a food service establishment of being unsanitary is not defamtory? What sort of places to you eat at, anyway?

      Or are you trying to say that it is only defamatory if untrue?

      • by Wonko the Sane (25252) * on Tuesday December 09, 2008 @02:37PM (#26049317) Journal

        Or are you trying to say that it is only defamatory if untrue?

        In the USA, truth is an absolute defense to defamation claims. [wikipedia.org]

      • by Todd Knarr (15451)

        No, having and stating an opinion is not defamatory. At least not in and of itself. And nobody should be subject to massive legal bills just because someone else doesn't like their opinion.

        Now, if the owner can show that the stated opinion is false (no reasonable person would have believed the place was unsanitary) and that the opinion was stated with the intention of harming his business, then he's got a case for defamation. But he hasn't even attempted that. All he's done is state his opinion of the posts

  • As a law student, it seems *entirely* prudent to me that a business man should be able to get a subpoena to get the IPs and names of people who are posting defamatory comments on the internet (assuming they are in fact defamatory). That said, NOTHING should prevent a person from being able to make anonymous posts. It is only IF your posts break the law that you should be "discoverable". Likewise, a person should be able to rant and rave about the government as much as they want. But if they make a post ad
    • Free speech and free press should, by default, be transcendent over property, reputation, religion, and even security. The laws and judicial opinions we have today are full of cruft from old moments of political expediency.

      The "'Fire!' in a theater" argument is an example of a poor decision that is often used to justify continued eroding of free speech. People are born with all rights; as they grow older they allow them to be taken away. They justify it by their need to live in a pink and fluffy padded

  • by cdrguru (88047) on Tuesday December 09, 2008 @02:31PM (#26049265) Homepage

    That is usually what it is called when you are doing something that affects a business in a negative manner. Slander and libel are problematic because even though we are all "journalists" now, the publishing of an opinion probably doesn't carry that much weight.

    The question is more likely can you have an unmoderated forum of nothing but negative comments about businesses without ever incurring legal liability? For most of the history of the world, the answer has been no, you can't. Today, with the Internet the operator of the forum may be hard to find, too hard for an assembly of people with torches and buckets of tar to locate and deliver punishment.

    I'd think that the operator of the forum can either shield participants and take all the heat or serve up the participants and hope nobody actually sues them. In today's world, betting you will not be sued is a very risky bet.

  • The scariest part is that these case is absurd on a number of levels, but at least one judge so far thinks this Zebulon J. Brodie whackjob actually had a valid point.

    First off, the First Amendment protects freedom of expression. We're not all the way there yet, but most intelligent people (including many judges) agree that anonymity is essential to guarantee free speech without fear of reprisal. One exception of course is for libelous or defamatory statements but those do NOT include negative criticism fram

  • by Nom du Keyboard (633989) on Tuesday December 09, 2008 @03:02PM (#26049615)
    Sorry Maryland, but you're too small of a state to be allowed to decide such an important issue for the whole country - even if your ruling would only apply within your own tiny state boundaries. You need to punt the issue to some larger state - like Texas or California.
    • Re: (Score:3, Interesting)

      Thing is, this kind of thing is coming up more and more, all across the country. The real problem is that most people who are victimized by this pernicious practice have no way in the world of getting -- or affording -- first amendment legal counsel to represent them, much less top drawer legal representation like Paul Levy and Public Citizen. Also they only find out about it usually a couple of days before their identities are about to be divulged. I had a case in New York where my client was one of about
  • Personal Opinion (Score:3, Informative)

    by Nom du Keyboard (633989) on Tuesday December 09, 2008 @03:06PM (#26049685)
    What is stated in TFA would clearly seem to be a personal opinion, and as such protected. Certainly the poster's valid opinion of the state of the DD shop is at least equal to that of the owner. I don't see the case here, or why it was allowed to get this far.

    Note to anonymous poster: Next time document your comment with a couple shots from your camera phone. Truth is an excellent defense in the USA against such charges. Also add the words, "In my opinion..."

    In Britain, however, this would be an entirely different matter.
  • by logicnazi (169418) <logicnazi@nOSpaM.gmail.com> on Tuesday December 09, 2008 @03:54PM (#26050347) Homepage

    IANAL but from what I recollect this guy is going to have a hard time justifying his demand for the poster's information to a judge.

    My understanding is that in order to prevail in a legal action of this kind you must demonstrate that you have a case, e.g., give good reason to believe that the person may have defamed you.

    The problem with the quote mentioned in this article is that it's not defamation if it's true. So without knowing who the poster is how do they hope to establish that the poster has been to less clean food-service establishments?

  • Don't you think Zebulon Brodie would have been better off just letting it go? By bringing the lawsuit he's bringing all this negative publicity down upon his allegedly dirty Dunkin' Donuts.

    One of the primary jobs of a good libel lawyer is to advise his client when NOT to sue.

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