TROLLS BEWARE….PENALTIES FOR DEFAMATION ON INTERNET

The rise of social media, blogs, and Internet forums has produced a variety of positive and negative consequences for society. For example, access to news and information, the free flow of ideas, and the ability to connect with others have all increased substantially. On the other hand, cyberspace has promoted misinformation, gossip, frivolous pursuits, and poor accountability for one’s speech. The latter of these negative byproducts has caused a proliferation of a uniquely annoying and often harmful type of person: the nasty anonymous poster (a/k/a “troll”).

We have all met trolls during our travels on the Internet. The troll comments on blogs, online newspaper articles, and other Internet forums without any apparent notion of propriety. The troll’s public posts often disrespect others, disregard their well-being, and lack factual accuracy. Sometimes the very purpose of the troll’s actions is to defame or harm another. People do not typically behave this way in normal conversation and interactions. However, the anonymity of the Internet seems to encourage the misdeeds of the nasty anonymous poster.

The Kentucky Court of Appeals recently stepped into this arena. The case Doe v. Coleman involved a defamation lawsuit against two anonymous Internet users of the website Topix.com. The suit alleged that they posted false statements that imputed fraud and criminal activity against the plaintiff and thereby damaged his reputation. The plaintiff subpoenaed two Internet service providers seeking the identities of the anonymous users. Those two users moved to quash the subpoena, but the trial court denied the motion. Consequently, they filed a petition for writ of prohibition in the Court of Appeals requesting that it prohibit disclosure of their identities.

In deciding the issue, the Court developed the test that will be used in Kentucky to determine when a plaintiff may compel disclosure of the identity of an anonymous Internet speaker. The plaintiff must: (1) undertake reasonable efforts to notify the anonymous defendant that he is the subject of a subpoena seeking disclosure and must withhold action in order to allow the anonymous defendant an opportunity to respond; and (2) set forth a preliminary showing of evidence on two elements of a defamation claim. Those elements are: (a) the language is defamatory on its face; and (b) it is false. (Note — the Court ruled that the plaintiff need not present evidence on the additional element of knowledge or recklessness as to the falsity of the statement, which is normally a prima facie element of a public-figure defamation claim.)

The newly minted Coleman test strikes a balance between the First Amendment rights of anonymous Internet posters and the right of a defamed person to seek legal redress. It provides notice to the anonymous person along with the opportunity to object, and it restricts discovery of their identities to cases with at least a basic showing of merit. Once the test is met, it gives the allegedly defamed party the right to draw back the Internet’s cloak of anonymity and confront the offending party in a court of law. The rest is up to a jury.

Ryan McLane  is an attorney in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.

 

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