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Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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October 11, 2005

Cahill and the Blogger: Anonymity ruling helps us all

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Posted by Wendy Seltzer

The Delaware Supreme Court last week gave strong protection to online anonymity in Cahill v. Doe. The court protected "Proud Citizen's" anonymity against a City Councilman's attempt to identify the poster in a defamation suit. The decision, the first of its type from a state supreme court, required the plaintiff to meet a summary judgment standard before obtaining anonymous speakers' identities, not just provide the perfunctory complaint of notice pleading.

The court further decided, as a matter of law, that Cahill's complaint failed the summary judgment standard. Its analysis, based in part on the context of the posting, is one that may annoy some bloggers:

[C]ertain factual and contextual issues relevant to chat rooms and blogs are particularly important in analyzing the defamation claim itself... chat rooms and blogs are generally not as reliable as the Wall Street Journal Online. Blogs and chat rooms tend to be vehicles for the expression of opinions; by their nature, they are not a source of facts or data upon which a reasonable person would rely.

Based on the context of "Proud Citizen"s post, in a chatroom filled with invective and personal opinion, the court found that "a reasonable person would not interpret Doe's statements as stating facts about Cahill. The statements are, therefore, incapable of a defamatory meaning."

I anticipate some bloggers will object to this characterization: Blogs can be just as important for the dissemination of facts as newspaper sites; newspapers can be wrong. This is of course true. The Cahill decision is not denigrating blogs and chatrooms -- they are entitled to First Amendment protections as strong as those of a newspaper -- but rather recognizing the discernment ability of their readers.

The standard empowers a wide range of bloggers' speech. Because readers can use context to help them differentiate opinions from statements of fact, bloggers are freer to publish their choice of opinionated gossip or citizen journalism. And thanks to courts like Cahill and Dendrite, they can do so using pseudonyms or their real names.

Comments (2) + TrackBacks (0) | Category: Speech


COMMENTS

1. Liquidlifehacker on October 13, 2005 12:33 PM writes...

Thanks for sharing this Wendy!

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2. arbitrary aardvark on October 19, 2005 10:59 PM writes...

The decision gets the law right and the facts wrong. Cahill and Mrs Cahill were defamed, and had their privacy invaded. Proud citizen was the best available witness as to the identity of the defamers. Citizen's remarks were not in themselves defamatory, but the suit was legitimate, and it was improper to dismiss it at this stage.
I reasonably believe that Cahill could have met the summary judgment standard, had the case been properly remanded to the lower court.
As someone who is a huge fan of EFF, and as someone who has litigated in Delaware courts about the right to online anonymity, I am very disappointed that EFF was a party to this injustice. Yes, the legal point established was an important one. But it's not a case that we can reliably point to as precedent, since it is a bad case that reached the wrong result.
Sincerely, Robbin Stewart esq.

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